ABB5 

91 


Injunctions,  labor 

¥GRESSIONAL4lEGULAi     J  OF  INJUNCTION'S 
HEARINGS 


BEFORE  THE 


I9        COMMITTEE  ON^LABOR 

.jHOUSE  OF  REPRESENTATIVES 
324 

SIXTY-SECOND/  CONGRESS 
SECOND  SESSION 


PENDING  ANTI-INJUNCTION  BILLS 


AUGUST  12,  1912 


LIBRARY 
PUBLIC  AFFAIRS  SERVICE 

NOV13  1969 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


WASHINGTON 

GOVERNMENT   PRINTING  OFFICE 
1912 


COMMITTEE  ON  LABOR. 
HOUSE  OF  REPRESENTATIVES, 

WILLIAM  B.  WILSON,  Pennsylvania,  Chairman. 

WALTER  L.  HENSLEY,  Missouri.  FINLY  H.  GRAY,  Indiana. 

JAMES  P.  MAKER,  New  York.  JOHN  J.  GARDNER,  New  Jersey. 

ARTHUR  B.  ROUSE,  Kentucky.  EDWARD  B.  VREELAND.  New  York. 

DAVID  J.  LEWIS,  Maryland.  J.  M.  C.  SMITH,  Michigan. 

WILLIAM  S.  HOWARD,  Georgia.  WILLIS  C.  HAWLEY,  Oregon. 
FRANK  BUCHANAN,  Illinois. 


PENDING  BILLS  FOR  REGULATING  INJUNCTIONS. 


COMMITTEE  ON  LABOR, 
HOUSE  OF  REPRESENTATIVES, 

Monday,  August  12,  1912. 

The  committee  met  at  11  o'clock  a.  m.,  Hon.  William  B.  Wilson 
(chairman)  presiding. 

STATEMENT  OF  THOMAS  CARL  SPELLING,  ATTORNEY  AT  LAW, 
NEW  YORK,  N.  Y. 

Mr.  SPELLING.  Mr.  Chairman  and  gentlemen  of  the  committee,  a 
bill  known  as  the  Clayton  injunction  bill  passed  the  House  on  the 
14th  of  May  last  by  a  vote  of  243  to  31,  no  Democrat  voting  against 
it  and  many  Republicans  for  it.  It  went  to  the  Senate,  and  reached 
the  Judiciary  Committee  on  the  15th  of  May,  three  months  ago 
lacking  three  days.  A  subcommittee  of  the  Senate  Judiciary  Com- 
mittee was  appointed.  Hearings  began  before  that  subcommittee 
within  a  few  days  after  that  date,  and  they  continued  from  day  to 
day,  hour  by  hour,  down  to  three  weeks  ago.  During  that  time  there 
have  been  six  arguments  made  of  from  one  and  a  half  hours  up. 
Some  of  the  arguments  were  an  hour  and  a  half  in  length,  some  of 
them  were  two  hours,  and  some  of  them  ran  on  from  day  to  day — all 
of  them  by  counsel  representing  associations,  railroad  companies, 
and  other  corporations  in  opposition  to  the  bill.  At  length,  three 
weeks  ago,  it  was  announced  that  the  proponents  and  supporters  of 
that  bill  (H.  R.  23635)  would  be  heard.  They  appeared,  led  by  the 
officers  and  representatives  of  the  American  Federation  of  Labor, 
with  counsel.  That  was  on  a  Thursday;  but  the  subcommittee 
adjourned  until  the  next  Tuesday,  without  giving  anyone  a  chance 
to  be  heard.  The  proponents  of  the  measure  appeared  there  on  the 
day  and  at  the  hour  to  which  adjournment  was  taken,  as  they  had 
done  before,  and  were  then  ready  to  proceed.  At  10  minutes  to  11 
o'clock  the  subcommittee  took  an  abrupt  adjournment  before  a  word 
could  be  spoken  for  the  bill.  As  far  as  any  record  was  made,  there 
was  no  time  set  for  any  further  opportunity  to  be  heard. 

The  session  now  draws  to  a  close  and  I  greatly  fear  the  utter  failure 
of  the  bill  hi  the  Senate,  and  of  any  other  bills  having  the  same  pur- 
pose in  view.  I  say  this,  notwithstanding  the  fact  that  notice  has 
been  given  of  a  hearing  next  Tuesday  (to-morrow)  at  12  o'clock,  at 
which  Mr.  Gompers  and  others  are  expected  to  be  heard. 

The  counsel  in  opposition  to  that  bill  fully  understand  the  far- 
reaching  importance  of  it;  they  see  that  great  irrepressible,  far- 
reaching,  economic,  and  social  problems  underlie  it.  In  their  argu- 
ments they  have  brought  forth,  almost  from  the  first,  the  conflict 


4  PENDING   BILLS   FOR   REGULATING  INJUNCTIONS. 

between  capital  and  labor  and  exploited  it  to  the  uttermost.  Fully 
do  these  trained  and  well-retained  lawyers  realize  that  there  is  an 
enormous  financial  advantage  in  the  prevailing  capitalistic  view  taken 
by  many  of  the  Federal  judges  on  the  question  of  injunctions,  relief 
from  which  forms  the  subject  matter  of  the  bill.  In  nothing  is  the 
importance  of  this  question  so  clearly  shown  as  in  the  personnel  and 
character  of  the  forces  arrayed  for  and  against  the  bill — the  one  class 
against  the  other.  The  labor  forces  have  been  accused  in  the  argu- 
ment, time  and  again,  of  trying  to  unsettle  the  law;  of  trying  to  give 
an  unfair  advantage  to  a  class  by  overturning  established  laws  and 
paralyzing  the  powers  of  the  courts;  whereas,  in  truth  and  fact,  the 
labor  representatives  are  only  asking  Congress  to  protect  them  from 
judicial  actions  in  excess  of  proper  legal  restraints  and  to  put  up 
proper  legislative  safeguards  against  aggressive  wrongs  committed  in 
the  interest  of  a  class. 

Although  the  bill  contains  no  definition  of  property  or  property 
right,  well  do  the  learned  counsel  in  opposition  realize  that  most  of 
the  abuses  of  which  labor  complains  arise  from  a  disregard  of  the 
limitation  of  equitable  jurisdiction  founded  upon  the  fundamental 
distinction  between  the  rights  of  property  and  personal  rights,  and 
that  sooner  or  later  that  great  issue  must  be  met  and  settled  by 
legislation.  Therefore,  without  reference  to  any  provision  in  the  bill, 
that  question  is  made  the  starting  and  ending  of  each  of  their  argu- 
ments, as  if  they  were  trying  to  erect  a  bulwark  against  the  future 
and  obtain  a  pre judgment  in  their  favor  from  Senators  and  Members 
of  the  House.  But  I  have  heretofore  encountered  such  so-called 
arguments  as  they  have  here  again  advanced,  and  do  not  regret  that 
they  have  again  thrown  upon  me  the  light  burden  of  refutation. 

Now,  gentlemen,  we  seldom  see  the  extent  of  an  evil  until  its  final 
development.  It  has  been  so  in  many  instances  that  I  might  use  for 
illustration.  The  tendency  or  the  practice  in  the  courts  of  assuming 
that  the  right  to  do  business  or  the  right  to  continue  business  regard- 
less of  the  consequences  to  others  is  entitled  to  the  exercise  of  juris- 
diction by  injunction,  as  a  protection  or  safeguard  of  the  men  who 
happen  to  be  business  men,  as  contradistinguished  from  men  in  other 
classes,  is  going  to  lead  to  the  unsettling  of  all  social  conditions,  and, 
if  it  is  not  checked  or  stayed  in  some  way,  will  lead  to  the  overthrow 
of  our  institutions.  In  that  usurpation  consists  the  vice  of  personal 
government,  and  each  judge,  if  allowed  to  go  on  and  carry  that  prac- 
tice to  its  logical  result,  would  become  a  sovereign  with  absolute 
powers  in  his  own  domain. 

Now,  if  the  right  to  do  business  or  continue  in  business  is  to  be  thus 
protected,  notwithstanding  the  fact  that  the  business  man  has  no 
such  protection  against  the  ordinary  obstacles  to  and  vicissitudes  of 
business,  and  the  rule  protecting  it  in  labor  disputes  is  given  its 
logical  operation,  then  the  remedy  by  injunction  to  protect  it  must 
be  coextensive  with  all  interferences  that  may  affect  it.  The  courts 
concede  now  the  right  to  strike  for  any  cause,  although  some  of  them 
have  within  the  last  three  or  four  years  been  trying  to  inject  into  it 
an  element  of  motive  and  have  undertaken  to  say  that  they  must 
strike  with  a  good  motive.  But  what  is  called  peaceful  picketing 
and  persuasion  are  also  conceded  to  be  legitimate.  And  yet,  if  this 
new  idea,  that  the  right  to  do  business  can  be  protected  bymjunction 
against  violence,  as  in  the  case  of  the  nonunionist  seeking  the  job  of 


PENDING  BILLS   FOE   REGULATING   INJUNCTIONS.  5 

the  unionist,  on  the  ground  that  such  an  act  is  an  interference  with 
the  right  to  do  business,  is  sound,  then  why  not  enjoin  the  strike, 
which  is  a  direct,  as  well  as  a  more  serious,  interference  with  business? 

So,  you  see,  we  can  comprehend  the  full  effect  of  not  checking  this 
abuse.  I  say  "we,"  and  in  using  that  word  I  include  all  who  are 
really  interested  in  the  welfare  of  the  people,  the  labor  class  con- 
stituting a  majority.  I  mean  we  who  are  seriously  concerned  for 
the  perpetuity  of  our  institutions  and  are  able  to  see  the  vital  im- 
portance of  pressing  forward  in  this  fight,  and  pressing  forward  with- 
out compromise,  working  earnestly  for  the  early  passage  by  the 
Senate  of  the  bill  which  I  have  mentioned  as  having  already  passed 
the  House. 

If  in  the  course  of  what  I  say  here  I  appear  to  go  outside  the  real 
issue,  this  is  my  answer,  that  by  showing  hereafter  that  the  courts 
possess  no  jurisdiction  to  enjoin  any  other  injuries  than  those  threat- 
ened to  property,  such  showing  has  been  made  necessary  by  the 
course  in  argument  of  the  opposition.  Such  showing  is  not  a  case  of 
proving  too  much,  but  a  case  in  which  the  greater  includes  the  less. 

It  can  not  be  doubted  that  some  of  the  wrongs  to  labor  by  excesses 
of  jurisdiction  are  due  to  willful  perversion  of  judicial  authority,  but 
it  is  evident  that  most  of  them  are  attributable  to  a  false  view  of 
social  duty. 

The  attitude  of  the  courts  of  whose  conduct  complaints  have  been 
made  has  all  the  dangers  and  vices  of  the  most  obnoxious  paternal- 
ism. Such  courts  have  accepted  the  abstract  right  to  do  or  to  con- 
tinue business,  which,  because  of  its  universality,  is  clearly  seen  to  be 
merely  personal,  as  a  property  right,  vested  in  one  class  to  the  exclu- 
sion of  others.  Hence,  in  protecting  it  by  injunction  in  excess  of 
jurisdiction  they  are  not  exercising  a  judicial  function  at  all  but 
enacting  destructive  legislation  for  the  benefit  of  one  class  and  direct- 
ing it  against  another.  And  this  is  a  complete  answer  to  the  objec- 
tion, so  often  repeated  here  in  argument,  that  this  bill  proposes 
legislation  in  the  interest  of  a  class. 

The  right  asserted  by  the  interests  here  arrayed  in  opposition  to 
the  bill  is  not  merely  that  of  doing  business,  but  of  continuing  busi- 
ness under  all  conditions  and  circumstances  exclusive  of  the  rights  of 
others,  and  though  the  exercise  of  it  may  mean  the  subordination  of 
all  other  rights.  Take  for  illustration  the  case  of  Buck's  Stove  & 
Range  Co.  against  the  American  Federation  of  Labor  and  others. 
The  evidence  in  that  case  showed  strong  provocation  for  the  hostility 
on  the  part  of  organized  labor  toward  the  plaintiff.  There  was  not 
only  a  dispute  of  long  standing  concerning  the  hours  of  service  in  the 
works,  but  plaintiff's  open  and  organized  hostility  to  unionism  in 
general.  It  was  shown  that  the  plaintiff's  president  was  at  the  head 
of  one  national  organization  whose  avowed  purpose  was  to  oppose 
nearly  all  that  union  labor  stands  for,  and  that  he  held  official  positions 
in  otner  organizations  of  employers  in  his  own  line  of  production 
whose  by-laws  provided  for  various  forms  not  only  of  resistance  but 
of  aggressive  action  hostile  to  the  unions.  Under  the  circumstances 
the  action  taken  by  the  labor  organizations  against  the  plaintiff 
might  have  been  fairly  considered  a  legitimate  battle  of  trade,  with 
which  a  court  of  equity  should  not  have  interfered.  The  feature  of 
that  case  which  is  pertinent  here  is  the  viewpoint  of  the  court  which 
granted  an  injunction  against  the  defendants. 


6  PENDING  BILLS  FOR  REGULATING   INJUNCTIONS. 

Among  the  objects  which  the  president  and  representative  of  the 
plaintiff  in  the  case  proposed  to  accomplish  in  the  labor  field  was  the 
maintenance  of  the  "open  shop,"  of  which  his  company's  plant  was 
an  exemplar. 

In  dealing  with  its  customers  that  company  insisted  upon  and  had 
succeeded  in  establishing  the  "closed  shop" — that  is  to  say,  it  made 
a  contract  with  just  one  dealer  and  no  more  in  each  town  or  city  in  the 
country  and  bound  the  customer  to  deal  in  its  goods  exclusively. 
And  it  was  this  right  for  which  it  sought  and  obtained  the  court's 
protection.  The  court  saw  nothing  wrong  in  the  exclusion  by  con- 
tract or  combination  between  it  and  a  dealer  in  each  community  of 
all  competition  and  the  acquisition  of  the  power  to  compel  working- 
men  and  all  others  to  pay  its  prices  or  go  without  stoves  and  ranges ; 
but  when  the  union  men,  to  whom  that  company  denied  the  right  of 
establishing  fair  and  reasonable  hours,  refused  to  patronize  it  and 
asserted  the  right  of  free  speech  and  freedom  of  the  press  in  calling 
attention  to  its  unfairness  the  court  concluded  that  was  not  permis- 
sible and  that  it  should  be  prevented,  even  if  to  prevent  it  required 
the  exertion  of  all  the  powers  of  the  court. 

The  plaintiff  in  that  case  was,  in  all  other  respects,  without  protec- 
tion from  external  forces  and  competitive  enterprises.  Other  manu- 
facturers to  the  number  of  more  than  60  were  in  the  market,  each 
competing,  at  least  with  respect  to  the  volume  of  trade,  through  the 
exclusive  contract  plan  probably,  and  otherwise,  each  seeking  to 
establish  a  "closed  shop  for  itself  in  each  town;  but  they  were  all 
members  of  the  Stove  Founders'  National  Defense  Association,  which 
exhibited  strong  hostility  to  organized  labor  in  its  by-laws.  Here 
they  stood  united;  but  all  the  members  were  otherwise  in  competi- 
tion each  with  the  other.  The  courts  afford  no  remedy  against  this 
competition,  and  we  consistently  maintain  that  they  should  afford 
none.  And  yet  the  court  forbade  by  injunction  labor  from  resorting 
to  effective  means  of  competition  for  a  fair  division  of  the  joint  prod- 
uct of  capital  and  labor. 

The  agents  of  each  of  the  sixty-odd  manufacturers  were  free  to 
make  whatever  representations  they  pleased,  truthful  or  untruthful, 
about  plaintiff's  goods,  and  thus  to  boycott  it,  if  you  please,  to  the 
fullest  extent,  and  thus  narrow  its  market  and  destroy  its  business, 
and  to  do  this  from  purely  selfish  or  vindictive  motives.  Against  all 
this  the  plaintiff  had  never  thought  of  seeking  an  injunction,  and  if 
one  had  Deen  sought  the  courts  would  have  treated  the  application 
as  an  absurdity.  But  when  union  labor,  seeking  the  establishment 
of  better  conditions  for  its  members,  and  acting  in  its  own  interest  in 
pursuit  of  its  legitimate  objects,  laid  down  a  fair  condition  upon 
which  it  would  patronize  the  plaintiff  and  declared  that  until  the 
condition  was  accepted  it  would  withhold  its  patronage,  its  entire 
membership  was  enjoined  from  maintaining  even  this  negative  at- 
titude toward  the  plaintiff.  In  other  words,  only  one  thing  was 
deemed  important  in  that  case,  only  one  consideration  seems  to  have 
moved  the  court,  and  that  was  the  successful  continuance  of  the 
plaintiff  in  business,  the  preservation  of  the  market  for  it,  at  all 
events,  regardless  of  the  interests  and  opinions  of  the  members  of 
the  unions,  who  were  the  principal  retail  purchasers  of  its  products,  as 
to  whether  it  was  entitled"  to  a  continuance  of  their  favor. 

And  that  case  is  fairly  illustrative  of  many  others. 


PENDING  BILLS  FOE  REGULATING  INJUNCTIONS.  7 

JUDICIAL    GUARANTIES   AGAINST   HAZARDS  OF  BUSINESS. 

•  The  courts,  supposedly  the  representatives  of  the  Government 
and  handmaids  of  public  justice,  are  thus  guaranteeing  to  a  certain 
class  immunity  against  the  ordinary  vicissitudes  and  hazards  of 
business.  And  they  are  doing  this  in  a  country  of  supposed  equals, 
and  in  order  to  do  it  are  robbing  hundreds  and  thousands  of  men 
of  their  liberties.  They  are  meantime  establishing  a  preferred 
class — a  business  despotism — and  exempting  the  membership  of  that 
class  from  some  of  the  difficulties  and  opposing  forces  which  they 
would  have  to  encounter  if  recognition  were  given  to  the  principle  of 
equality  before  the  law  and  impartiality  in  the  administration  of 
justice. 

Employing  capital  is  thus  exempted,  and  labor  correspondingly 
discriminated  against.  It  appears  that  some  of  the  courts  ha.ve  un- 
consciously imbibed  the  spirit  of  commercialism,  and  when  led  by 
that  spirit  are  no  longer  able  to  attach  importance  to  the  simple 
ordinary  rights  of  the  citizen.  Such  courts  act  as  if  they  considered 
it  the  chief  purpose  of  government  to  promote  and  encourage  the 
accumulation  of  wealth  in  the  hands  of  those  in  possession  of  the 
machinery  of  production  and  trade.  In  the  presence  of  that  purpose 
all  conflicting  interests  must  yield.  The  interests  and  personal 
rights  of  hundreds  and  thousands  must  give  way  whenever  the  con- 
flict in  court  happens  to  come  between  the  interests  of  what  are  desig- 
nated "business  men"  and  those  of  "wage  earners."  The  failure  of 
an  individual  business  man,  or  even  an  interruption  of  his  operations, 
is  considered  a  misfortune  of  direst  import  as  compared  to  the  pa- 
ralysis of  the  arms  and  tongues  of  any  number  of  men  having  smaller 
interests,  though  those  interests  be  equally  dear,  or  even  vital,  to  the 
possessors. 

Gustavus  Myers  in  the  preface  to  his  remarkable  History  of  the 
Supreme  Court,  of  th«  United  States  says: 

Instance  after  instance  occurs  where  justices,  at  the  end  of  long  service  on  the 
bench,  have  died  virtually  penniless  or  possessed  of  the  most  scantily  moderate  degree 
of  means.  Yet  many  of  those  very  justices  were  the  same  who  by  their  decisions  gave 
to  capitalists  vast  resources  of  power  translatable  into  immense  wealth.  The  influences 
so  consistently  operating  upon  the  minds  and  acts  of  the  incumbents  were  not  venal, 
but  class  influences,  and  were  all  the  more  effective  for  the  very  reason  that  the 
justices  in  question  were  not  open  to  pecuniarily  dishonest  practices. 

From  training,  association,  interest,  and  prejudice,  all  absorbed  in  the  radius  of 
permeating  class  environment,  a  fixed  state  of  minu  results.  Upon  conditions  that  the 
ruling  class  finds  profitable  to  its  aims  and  advantageous  to  its  power  are  built  codes 
of  morality  as  well  as  of  law,  which  codes  are  but  reflections  and  agencies  of  those 
all-potent  class  interests. 

In  the  case  of  men  whose  minds  are  already  permanently  molded  to  such  purposes, 
and  whose  character  and  station  forbid  the  use  of  illicit  means,  immeasurable  sub- 
servience can  be  obtained  which  crude  and  vulgar  money  bribery  would  hopelessly 
fail  to  accomplish.  Under  these  circumstances  a  great  succession  of  privileges  and 
powers  are  given  gratuitously,  and  class  corruption  appears  as  honest  conviction 
because  of  the  absence  of  personal  temptations  and  benefits  on  the  part  of  the  justices. 
In  this  deceptive  and  insidious  guise  supreme  judicial  acts  go  forth  to  claim  the 
respect  and  submission  of  the  working  class,  against  whom  the  decisions  are  applied. 

It  would  be  useless  to  attempt  hiding  the  social  and  economic 
struggle  out  of  which  this  issue  has  grown.  No  one  who  has  given 
thought  to  the  subject  can  doubt  that,  among  many  causes  for  the 
high  cost  of  living  and  the  consequently  relative  low  wage  rate  for 
labor  is  overcapitalization  by  corporations.  The  payment  of  divi- 


8 


PENDING  BILLS  FOE  REGULATING  INJUNCTIONS. 


dends  on  stocks  which  often  represent  no  investment,  or  very  little, 
compels  them  to  force  the  cost  of  living  up  at  one  end  and  the  wages 
of  their  employees  down  at  the  other.  Thus  they  exploit  both  the 
consumer  and  the  wage  earner,  oftener  than  otherwise  represented 
in  the  same  person.  In  order  to  pay  these  dividends  they  totally 
ignore  the  claims  of  humanity,  resort  to  speeding  up,  long  hours,  and 
other  forms  of  downright  cruelty.  To  such  extremes  would  they  go 
were  it  not  for  such  resistance  as  organizations  of  labor  can  inter- 
pose, and  were  we  to  leave  in  their  hands  the  instrumentality  of 
iniunctive  processes  as  now  administered,  they  would  soon  reduce 
labor  in  this  country  to  a  worse  plight  than  in  any  nation  of  the 
world — worse  even  than  that  of  Russian  exiles  in  the  coal  mines  of 
Siberia. 

Of  course,  writs  of  injunction  are  not  recklessly  and  inconsideratelv 
granted  by  all  courts,  but  these  large  employing  corporations,  sucn 
as  constitute  membership  in  the  associations  represented  by  Mr. 
Hines,  Mr.  Dillard,  Mr.  Davenport,  Mr.  Emery,  Mr.  Monagkan,  Mr. 
Herrod,  Mr.  Drew,  and  others  can  always  find  a  judge  who  fails  to 
properly  discriminate  between  a  good  complaint  and  a  bad  one,  a 
fair  order  and  one  that  is  too  drastic  and  too  vague. 

I  will  insert  some  figures  furnished  by  Roger  W.  Babson,  a  cele- 
brated statistician.  These  figures  were  obtained  by  him  from  the 
returns  of  corporations  under  the  corporation-tax  law  of  1909,  and 
are  therefore  official. 

National  corporation  tax  returns. 


1910 

1911 

Increase. 

Capitalization 

$52.371,626.752 

$57,886.430,519 

$5,514,803,767 

$31  333  952  6% 

$30  715  336  008 

i  $618  616  688 

Dividends  

$3.125.480,000 

$3.  300,  250,  642 

$234,  779,  642 

262,490 

270,202 

7,712 

Of  course  vou  will  understand  that  these  are  returns  only  from 
corporations  "having  net  incomes  of  $5,000  and  over  and  that  some 
classes  of  very  large  corporations  are  exempted  from  the  tax  and  are 
therefore  also  omitted. 

Now,  by  their  own  showing  in  the  record  of  the  Senate  hearings, 
the  gentlemen  I  have  named  represent  a  large  number  of  these  cor- 
porations, which,  with  others  not  represented  but  directly  interested, 
employ  the  labor  of  this  country.  These  are  some  of  the  corporations 
which  realize  in  profits  and  pay  to  their  stockholders  in  dividends 
over  three  and  a  quarter  billions  of  dollars  a  year,  taken  back  out  of 
the  wages  they  pay  and  from  moneys  otherwise  earned  by  the  people 
of  this  country.  Last  year  their  capitalization  increased  five  and 
one-half  billions  of  dollars  and  their  profits,  represented  in  dividends, 
increased  over  $234,000,000. 

Such  are  the  opponents  of  this  bill.  Such  are  the  institutions  that 
object  to  loosening  even  one  of  the  fetters  they  have  placed  upon  the 
limbs  of  labor,  fetters  which  are  held  through  the  constant  menace  of 
writs  of  inj unction  and  the  fear  of  jail  sentences. 


PENDING  BILLS  FOR   REGULATING   INJUNCTIONS. 


9 


I  wish  to  present  some  further  statistics  on  this  subject.  The 
figures  which  I  now  present  represent  the  operations  of  steam  rail- 
roads engaged  in  interstate  commerce: 


Ratio 

operat- 

ing ex- 

Percent- 

Total revenue. 

Total  outgo. 

Net  re»-enue. 

penses  to 

age,  net 

operat- 

revenue. 

ing  reve- 

nue. 

Per  cent. 

1908  

$2,  424,  640,  637 

$1,695,101,878 

$729,538,758 

69.91 

30.09 

1909 

2,393,805,989 

1,669,547,876 

730,235,381 

69.75 

30.25 

1910  

2,787,266,136 

1,  847,  189,  773 

940,076,363 

66.27 

33.73 

It  is  also  eminently  proper  on  this  occasion  to  call  attention  to  a 
few  matters  of  relevant  history.  At  the  close  of  the  Civil  War  so 
large  a  proportion  of  transportation  was  by  water  and  railroad  mileage 
and  investment  were  relative^  so  small  that  the  latter  was  not  a 
matter  of  serious  concern  in  any  quarter  as  a  political  or  financial 
power.  The  lines  were  short  ana  they  were  operated  merely  as 
feeders  of  transportation  by  water.  Railroad  bond  issues  outstand- 
ing did  not  exceed  $400,000,000.  Now,  it  is  claimed,  or  rather 
admitted,  by  the  highest  railway  authorities  that  altogether  not  more 
than  $8,000,000,000  of  cash  capital  has  been  invested  to  date,  and 
yet  they  claim  that  the  $18,000,000,000  of  stocks  and  bonds  out- 
standing are  not  in  excess  of  the  value  of  the  railroad  properties. 

In  other  words,  that,  considering  present  values,  there  is  no  over- 
capitalization. Accepting  all  these  claims  and  admissions  at  face 
value,  what  do  they  prove  ?  They  prove  that  each  investment  of  $8 
has  resulted  in  a  net  increase  in  capitalization  of  $10.  Eliminating 
from  the  calculation  the  small  beginning  that  had  been  made,  starting 
with  1866,  and  assuming  the  entire  $8,000,000,000  as  an  investment 
made  at  that  date,  a  net  increase  is  shown  of  125  per  cent  in  44  years. 
But  inasmuch  as  the  aggregate  of  original  investment  has  increased 
much  faster  during  the  last  than  during  the  first  22  years  of  the  period, 
it  is  at  least  fair  to  treat  the  investment  of  $8,000,000,000  as  one 
made  22  years  prior  to  1910.  The  showing  then  is  of  an  average 
annual  net  profit  from  investments  in  railroad  properties  of  a  fraction 
over  5.77  per  cent,  which  is  found  by  dividing  125  oy  22.  Now,  with 
one-seventh  of  the  Nation's  capital/all  in  the  hands  of  one  small  class 
of  business  men,  withdrawing  from  all  others  5  77  per  cent  of  net 
profit  as  against  a  much  smaller  percentage  withdrawn  by  the  rest 
(estimated  at  3  per  cent),  it  is  not  difficult  to  see  the  end  of  prosperity 
in  all  lines  of  enterprise  other  than  that  of  transportation  by  rail.  It 
is  clear  that  if  some  peaceable  and  lawful  means  be  not  found  to  end 
this  grossly  unjust  disparity  the  end  will  be  complete  financial  des- 
potism on  the  one  hand  and  abject  dependence  on  the  other. 

Now,  that  5.75  per  cent  is  practically  guaranteed  as  a  fixed  income 
on  $18,000,000,000.  But  the  interest  paid  on  railroad  bonds  is  much 
less  than  5  per  cent,  and  runs  as  low  as  3  per  cent.  The  Interstate 
Commerce  Commission  in  1904  made  a  report  showing  that  the  aver- 
age dividend  rate  on  railroad  stocks  was  tnen  5^  per  cent.  The  com- 
mission's statistics  show  that  in  1908  and  1909  it  was  6.43  per  cent, 


10  PENDING  BILLS  FOR   REGULATING   INJUNCTIONS. 

and  as  there  was  a  great  increase  in  net  revenues  in  1910  it  is  now  over 
7  per  cent.  The  bonded  indebtedness  represents  almost  the  entire 
investment,  and  is  less  than  one-half  the  capitalization;  so  that  7 
per  cent  dividends  is  really  14  per  cent  on  the  actual  investment, 
assuming,  though  contrary  to  the  fact,  that  the  present  owners  of  the 
railroads  made  the  investment,  or  any  part  of  it. 

But  this  does  not  tell  the  whole  story.  At  least  one-half  the  oper- 
ating revenue  goes  to  extensions  and  improvements  which  when  made 
belong  to  the  holders  of  the  stocks,  who  own  the  railroads. 

I  think  that  instead  of  trying  to  hold  down  their  employees  to  low 
wages  with  the  menace  of  usurped  iniunctive  powers  of  the  courts,  it 
would  be  fairer,  and  cheaper  in  the  long  run,  to  increase  wages  and 
shorten  the  hours  of  toil. 

There  is  another  phase  of  this  matter,  however,  to  which  I  am 
strongly  tempted  to  call  your  attention.  How  long  can  the  people  of 
this  country  stand  these  vastly  disproportionate  returns  to  class 
capital  ?  It  would  relieve  the  situation  somewhat  if  they  gave  their 
employees  shorter  hours  and  better  wages.  Some  of  the  stupendous 
exactions  from  business  and  industry  would  thus  find  its  way  back  to 
the  people  who  pay  freights  and  fares,  instead  of  creating  multi- 
millionaires, or  being  squandered  in  foreign  countries  and  in  wasteful 
luxuries  at  home. 

Mr.  Hines  went  into  the  apparently  irrelevant  matter  of  wage 
increases  by  the  railroads.  But  in  spite  of  nominal  increases,  the  net 
earnings  of  the  railroads  increased  in  1910,  when  most  of  the  increases 
took  effect  over  the  net  earnings  of  1909,  by  more  than  $110,000,000. 

I  have  inserted  the  foregoing  statistics  and  commented  upon  their 
significance  because  I  recognize  that  the  struggle  between  capital  and 
labor  is  really  competitive.  An  irrepressible,  inevitable  conflict  be- 
tween the  respective  forces,  with  a  just  division  of  the  joint  products 
of  capital  and  labor  as  the  issue,  and  that  the  unwarranted  resort  to  tlje 
process  of  injunction  gives  to  one  side  of  that  conflict  a  grossly  unfair 
advantage.  The  courts  should  never  interpose  between  these  forces 
unless  the  facts  would  warrant  interference  in  the  absence  of  a  dispute, 
and  in  other  trade  conflicts  they  never  do  interpose. 

In  Hopkins  v.  Oxley  Stave  Co.  (83  Fed.  R.,  912)  Judge  Caldwell 
said: 

While  laborers,  by  the  application  to  them  of  tie  doctrine  we  are  considering,  are 
reduced  to  individual  action,  it  is  not  so  with  the  forces  arrayed  against  them.  A 
corporation  is  an  association  of  individuals  for  combined  action :  trusts  are  corporations 
combined  together  for  the  very  purpose  of  collective  action  and  boycotting;  and  capi- 
tal, which  is  the  product  of  labor,  is  in  itself  a  powerful  collective  force.  Indeed, 
according  to  this  supposed  rule,  every  corporation  and  trust  is  an  unlawful  combi- 
nation, for  while  its  business  may  be  of  a  kind  that  its  individual  members,  each 
acting  for  himself,  might  lawfully  conduct,  the  moment  they  enter  into  a  combination 
to  do  that  same  thing  by  their  combined  effort  the  combination  becomes  an  unlawful 
conspiracy.  But  the  rule  is  never  applied. 

Corporations  and  trusts  and  other  combinations  of  individuals  and  aggregations  of 
capital  extend  themselves  right  and  left  through  the  entire  community,  boycotting 
and  inflicting  irreparable  damage  upon  and  crushing  out  all  small  dealers  and  pro- 
ducers, stifling  competition,  establishing  monopolies,  reducing  the  wage  of  the  laborer, 
raising  the  price  of  food  on  every  man's  table  and  of  the  clothes  on  his  back  and  of  the 
house  that  shelters  him,  and  inflicting  on  the  wage  earners  the  pains  and  penalties  of 
the  lockout  and  the  black  list,  and  denying  to  them  the  right  of  association  and  com- 
bined action  by  refusing  employment  to  those  who  are  members  of  labor  organizations; 
and  all  these  things  are  justified  as  a  legitimate  result  of  the  evolution  of  industries 
resulting  from  new  social  and  economic  conditions,  and  of  the  right  of  every  man  to 
cany  on  his  business  as  he  sees  fit,  and  of  lawful  competition. 


PENDING  BILLS   FOE   REGULATING  INJUNCTIONS.  11 

On  the  other  hand,  when  laborers  combine  to  maintain  or  raise  their  wages  or  other- 
wise to  better  their  conditions  or  to  protect  themselves  from  oppression  or  to  attempt 
to  overcome  competition  with  their  labor  or  the  producers  of  their  labor  in  order 
that  they  may  continue  to  have  employment  and  live,  their  action,  however  open, 
peaceful,  and  orderly,  is  branded  as  a  "conspiracy."  What  is  "competition"  when 
done  by  capital  is  "conspiracy"  when  done  by  laborers.  No  amount  of  verbal  dex- 
terity can  conceal  or  justify  this  glaring  discrimination.  If  the  vast  aggregation  and 
collective  action  of  capital  is  not  accompanied  by  a  corresponding  organization  and 
collective  action  of  labor,  capital  will  speedily  become  proprietor  of  the  wage  earners 
as  well  as  the  recipient  of  the  profits  of  their  labor.  This  result  can  only  be  averted 
by  some  sort  of  organization  that  will  secure  the  collective  action  of  wage  earners. 
This  is  demanded,  not  in  the  interest  of  wage  earners  alone,  but  by  the  highest  con- 
siderations of  public  policy. 

In  Vergelahn  v.  Guntner  (167  Mass.,  92)  Justice  Holmes,  now  of  the 
Supreme  Court  of  the  United  States,  said : 

It  is  plain  from  the  slightest  consideration  of  practical  affairs  or  the  most  superficial 
reading  of  industrial  history  that  free  competition  means  combination,  and  that  the 
organization  of  the  world,  now  going  on  so  fast,  means  an  ever-increasing  might  and 
scope  of  combination.  It  seems  to  me  futile  to  set  our  faces  against  this  tendency. 
Whether  beneficial  on  the  whole,  as  I  think  it  is,  or  detrimental  it  is  inevitable, 
unless  the  fundamental  axioms  of  society  and  even  the  fundamental  conditions  of 
life  are  to  be  changed. 

One  of  the  eternal  conflicts  out  of  which  life  is  made  is  that  between  the  effort  of 
every  man  to  get  the  most  he  can  for  his  services,  and  that  of  society,  disguised  under 
the  name  of  capital,  to  get  his  services  for  the  least  possible  return.  Combination  on 
the  one  side  is  potent  and  powerful.  Combination  on  the  other  is  a  fair  and  equal  way. 
*  *  *  If  it  be  true  that  the  workingmen  may  combine  with  a  view,  among  other 
things,  to  getting  as  much  as  they  can  for  their  labor,  just  as  capital  may  combine  with 
a  view  to  getting  the  greatest  possible  return,  it  must  be  true  that  when  combined  they 
have  the  same  liberty  that  combined  capital  has  to  support  their  interest  by  argument, 
persuasion,  and  the  bestowal  or  refusal  of  those  advantages  which  they  otherwise  law- 
fully control. 

I  desire  to  read  from  what  Lord  Coleridge  said  in  the  great  case  of 
the  Mogul  Steamship  Co.  v.  McGregor  (21  Q.  B.  Division,  544,  1892). 
This  is  a  case  of  conflict  between  capitalists  for  the  control  of  the 
carrying  trade  of  the  ocean.  The  court  said: 

There  can  be  no  doubt  that  the  defendants  were  determined,  if  they  could,  to 
exclude  the  plaintiffs  from  this  trade.  Strong  expressions  were  drawn  from  some  of 
them  in  cross-examination,  and  the  telegrams  and  letters  showed  the  importance  they 
attached  to  the  matter,  their  resolute  purpose  to  exclude  the  plaintiffs  if  they  could, 
and  to  do  so  without  any  consideration  for  the  results  to  the  plaintiffs  if  they  were  suc- 
cessfully excluded.  This,  I  think,  is  made  out,  and  I  think  no  more  is  made  out  than 
this.  Is  this  enough?  It  must  be  remembered  that  all  trade  is,  and  must  be,  in  a 
sense  selfish.  Trade  not  being  infinite — nay,  the  trade  of  a  particular  place  or  district 
being  possibly  very  limited — what  one  man  gains  another  loses. 

In  the  hand-to-hand  war  of  commerce,  as  in  the  conflicts  of  public  life,  whether  at 
the  bar,  in  Parliament,  in  medicine,  in  engineering — I  give  examples  only— men  fight 
on  without  much  thought  of  others,  except  a  desire  to  excel  or  defeat  them.  Very 
lofty  minds,  like  Sir  Philip  Sydney,  with  his  cup  of  water,  will  not  stoop  to  take 
advantage  if  they  think  another  wants  it  more.  Our  age,  in  spite  of  high  authority 
to  the  contrary,  is  not  without  its  Sir  Philip  Sydneys,  but  these  counsels  of  perfection 
it  would  be  silly  indeed  to  make  the  measure  of  the  rough  business  of  the  world  as 
pursued  by  ordinary  men  of  business. 

I  have  already  said  that  the  same  conflict  goes  on  between  capital  for  the  trade  of 
the  world,  which  is  not  infinite;  goes  on  and  is  unavoidable  between  capitalists, 
whether  in  individual  hands  or  in  the  hands  of  these  mighty  combinations  and 
labor,  and  without  organization  the  tendency  inevitably  is  for  labor  to  descend,  and 
that  rapidly,  to  a  condition  of  absolute  servitude  and  helplessness.  I  say  that,  in 
the  nature  of  things  and  under  present  conditions,  this  warfare  is  unavoidable,  and 
there  is  the  same  justification  for  organized  labor  resorting  to  the  legitimate  and 
recognized  methods  of  warfare  in  its  hard  and  unequal  struggle  against  capital  that 
there  is  expressed  in  the  foregoing  extracts  in  the  conflicts  of  capital  against  capital, 
and  the  learned  justices  have  shown  you  what  extraordinary  lengths  are  held  justi- 
fiable. 


12  PENDING  BILLS  FOB  REGULATING   INJUNCTIONS. 

And  in  Pickett  v.  Walsh  (192  Mass.,  572)  Judge  Loring,  delivering 
the  opinion,  said: 

Further,  the  effect  of  complying  with  the  labor  union's  demands  apparently  will 
be  the  destruction  of  the  plaintiff's  business.  But  the  fact  that  the  business  of  a 
plaintiff  is  destroyed  by  the  acts  of  the  defendants  done  in  pursuance  of  their  right 
of  competition  is  not  decisive  of  the  illegality  of  the  acts.  It  was  well  said  by  Ham- 
mond, J.,  in  Martell  v.  \Vhite  (185  Mass.,  255,  260),  in  regard  to  the  right  of  a  citizen 
to  pursue  his  business  without  interference  by  a  combination  to  destroy  it:  "Speak- 
ing generally,  however,  competition  in  business  is  permitted,  although  frequently 
disastrous  to  those  engaged  in  it.  It  is  always  selfish,  often  sharp,  and  sometimes 
deadly." 

The  application  of  the  right  of  the  defendant  unions,  who  are  composed  of  brick- 
layers and  stonemasons,  to  compete  with  the  individual  plaintiffs,  who  can  do  noth- 
ing but  pointing  (as  we  have  said),  is  in  the  case  at  bar  disastrous  to  the  pointers  and 
hard  on  the  contractors.  But  this  is  not  the  first.  The  case  at  bar  is  an  instance 
where  the  evils  which  are  or  may  be  incident  to  competition  bear  very  harshly  on 
those  interested,  but  in  spite  of  such  evils  competition  is  necessary  to  the  welfare  of 
the  community. 

To  the  same  effect  is  Allis-Chalmers  Co.  v.  Iron  Holders'  Union 
(C.  C.)  (150  Fed.  Rep.,  155),  per  Sanborn,  J. 

Great  changes  are  at  work  in  the  public  thought  of  the  Nation,  and 
labor  is  abreast  of  the  times. 

In  the  report  of  the  House  committee  on  this  bill  we  find  this 
expression: 

The  idea  has  been  advanced  and  ably  supported  in  argument  by  one  of  the  pro- 
ponents of  this  legislation  that  liberty  and  more  of  it  is  safe  in  the  hands  of  the  work- 
ingmen  of  the  country.  We  are  convinced  of  the  merit  and  truth  of  that  contention. 
The  tendency  toward  freedom  and  liberation  from  legal  trammels  and  impediments  to 
progress  and  to  a  great  social  advance  is  seen  in  nearly  all  civilized  nations.  It  is  an 
unpropitious  time  to  oppose  a  reform  like  that  embodied  in  this  bill  in  view  of  the 
fact  that  the  abuses  of  power  which  it  seeks  to  terminate  have  been,  admittedly, 
numerous  and  flagrant. 

As  evidence  that  organized  labor  fully  understand  their  rights,  I 
read  from  the  address  of  President  Gompers  to  the  last  annual  con- 
vention of  the  American  Federation  of  Labor,  the  same  having  been 
unanimously  adopted  as  the  sense  of  the  members. 

POLITICAL   CHANGES   AFFECTING   LABOR. 

At  length  it  has  become  evident  to  all  open-minded  men  that  important  changes 
are  impending  in  our  methods  of  government,  and  especially  with  reference  to  the 
status  of  political  parties.  Voters  are  now  demanding  better  reasons  for  their  support 
of  a  particular  candidate  than  his  nomination  by  a  party  or  his  indorsement  by  some 
official  or  unofficial  boss.  The  spirit  of  revolt  and  change  is  abroad  in  the  land ,  and 
the  spirit  of  liberty  which  first  inspired  the  Revolutionary  leaders  in  1776  has  again 
entered  the  hearts  of  the  American  people.  The  people  who  form  the  rank  and  file 
of  political  parties  are  more  progressive  than  their  leaders.  They  will  no  longer  sub- 
mit to  the  rule  of  evasion  and  false  pretenses  found  in  platforms,  presidential  mes- 
sages, and  public  addresses.  They  demand  straight  talk  and  open,  honorable  methods. 

I  hope  to  find  henceforth  that  tte  millions  of  intelligent  men  of  labor,  having  passed 
beyond  the  influence  of  campaign  buncombe,  have  come  to  understand  that  the 
welfare  of  the  people  and  the  promotion  of  the  cause  of  labor  are  more  important  than 
any  party  candidacy  or  empty  partisan  success. 

In  the  progress  being  made  toward  popular  rule,  now  seen  not  only  in  our  own 
country  but  in  all  nations,  labor  can  justly  claim  an  important,  if  not  indeed  a  leading, 
part.  In  this  movement  international  boundaries  may  be  disregarded.  The  manhood 
and  intellect  associated  in  the  war  for  the  rights  of  men,  differentiated  from  those  of 
wealth,  privilege,  and  hereditary  rank,  belong  to  no  particular  race,  class,  or  nation- 
ality. The  spirit  of  liberty  and  self-assertion  overlaps  mountain  ranges  and  speeds 
across  the  seas  separating  empires  and  continents.  It  can  not  be  stayed  by  kings,  nor 
by  injunctions  and  jail  sentences. 


PENDING  BILLS  FOB  REGULATING  INJUNCTIONS.  13 

True  progress  has  never  been  by  rapid  strides,  notwithstanding  that  a  change  from 
the  old  to  a  new  order  comes  with  a  suddenness  which  is  almost  startling,  when  after 
a  long  period  of  dissension  and  preparation  the  people  are  ready.  Labor  has  been 
patient  and  persistent,  enduring  many  wrongs  and  sacrifices.  There  should  be  no 
retreat  from  the  points  of  vantage  it  has  conquered . 

Labor's  contentions  of  many  years  have  at  length  become  merged  into,  or  have 
rather  coordinated  with,  those  of  the  progressives  of  all  parties.  The  people  as  a  whole, 
irrespective  of  class,  condition,  calling,  or  partisan  alignment,  have  declared  for 
freedom  in  fact  and  not  merely  in  name.  They  are  taking  affairs  political  into  their 
own  hands.  They  will  no  longer  tolerate  the  sale  of  legislation  to  the  highest  bidder 
or  the  granting  of  franchises  to  the  richest  bribe  giver. 

Under  the  coming  regime  assuredly  there  are  to  be  no  more  court  decrees  entered 
as  prepared  in  advance  and  ordered  by  the  attorney  for  the  stronger  party — stronger 
politically  or  financially.  Along  with  these  abuses  will  depart  the  midnight  injunc- 
tion and  the  policeman's  ready  club,  at  the  behest  of  those  claiming  a  property  right 
in  the  labor  of  the  vicinage,  whether  at  work  or  on  strike.  In  lieu  of  the  political  boss 
and  his  machine  we  s.  all  have  leadership  of  intelligence,  pleading  for  public  justice, 
with  adherents  proportioned  in  number  to  the  strength  of  the  arguments.  The  stuffed 
ballot  box,  the  false  count,  and  the  perjured  election  return  will  likewise  disappear. 
With  these  opportunities,  with  these  stimulating  inducements  to  free  thought  and 
action,  the  cause  of  public  justice  will  be  advanced  in  all  directions.  Labor,  acting 
from  the  point  of  enlightened  self-interest,  and  yet  with  a  full  sense  of  responsibility 
respecting  the  just  rights  of  all  others  in  society,  will  manfully  and  patriotically  meet 
its  enlarged  responsibilities. 

Under  the  prevailing  system  of  cut-and-dried  platforms  and  slated  nominations, 
preceded  by  fake  primaries,  the  ballot  in  our  hands  has  not  been,  in  any  adequate 
sense,  either  a  protecting  shield  against  wrong  or  a  means  of  redress.  We  may  not 
for  some  time  be  entirely  rid  of  the  rule  of  parties.  If  they  be  an  evil,  they  are  such 
as  are  incident  to  all  governments  based  on  popular  suffrage.  I  deem  it  unwise,  or 
rather  impolitic,  to  waste  our  energies  now  in  efforts  to  abolish  political  parties. 
Perhaps  they  are  institutional  in  all  free  governments.  But  if  we  can  not  destroy 
them  we  may,  by  more  assiduous  and  regular  exercise  of  our  privileges  and  rights  of 
citizenship,  do  much  in  the  way  of  controlling  them. 

Under  existing  conditions  we  must  obtain  various  measures  of  legislation  at  the 
hands  of  dominant  parties  in  legislative  bodies,  and  if  party  affairs  are  to  remain  in  the 
hands  of  corporate  agents  and  corrupt  bosses,  as  heretofore,  then  our  interests  will  be 
imperiled  and  the  desired  end  retarded  no  matter  which  party  has  the  majority. 

"But  political  parties  should,  after  all,  be  treated  as  means  to  an  end.  The  success 
of  a  party  should  never  outweigh  the  accomplishment  in  legislation  or  administration 
of  the  important  purposes  of  labor.  In  casting  our  ballots  we  should  ever  distinguish 
whenever  possible  between  our  friends  and  our  enemies,  and  between  these  should  be 
no  division  on  party  lines  among  us.  On  general  party  issues  it  would  be  useless  to 
attempt  bringing  about  unity  of  action,  and  perhaps  it  is  better  in  the  long  run  that 
such  is  the  case.  But  when  we  are  seeking  legislation  from  Congress  on  so  vital  a 
matter  as  curtailment  of  personal  liberties,  including  the  right  of  free  speech  and  free 
press,  we  should  be  a  unit  in  opposition  to  candidates  who  stand  in  the  way,  no  matter 
how  exalted  the  office  sought  by  them. 

DO   ABUSES    EXIST? 

Abuses  in  issuing  and  enforcing  injunctions  do  exist,  and  so  serious 
have  they  been  that  two  Presidents,  one  of  whom  had  been  himself 
a  judge,  were  compelled,  presumably  by  sense  of  duty,  to  send  mes- 
sages to  Congress  calling  attention  to  them  and  suggesting  legislative 
remedies. 

Every  well-informed  lawyer  in  the  country  knows  that  such  abuses 
exist,  and  some  judges  have  spoken  of  them  in  condemnation.  And 
yet  there  has  not  been  a  suggestion  from  one  of  the  half  dozen  counsel 
appearing  in  opposition  to  this  bill  that  Congress  should  amend  the 
law  in  any  particular.  On  the  contrary,  you  may  read  each  argument 
in  turn  and  you  will  find  that  every  single  feature  and  provision  of 
the  bill,  from  the  general  purport  to  the  minutest  detail,  is  bitterly 
assailed  and  the  same  old  decisions  and  the  same  old  threadbare 


14  PENDING  BILLS   FOB   REGULATING   INJUNCTIONS. 

arguments  employed  in  one  speech  after  another.  As  showing  the 
attitude  of  the  opposition,  I  call  attention  to  the  fact  that  the  char- 
acter of  opposition  before  the  House  committee  was  just  as  vindictive, 
just  as  unyielding,  just  as  uncompromising,  just  as  hardened  against 
reason,  as  before  the  Senate  committee.  At  the  hearings  before  the 
House  committee  one  of  the  members  said  to  the  gentleman  whom  I 
consider  the  leader  in  opposition,  Mr.  Davenport: 

I  should  like  to  ask  you  this  question.  In  the  course  of  an  experience  which  haa 
been  more  extensive  than  that  of  any  other  man  I  know,  has  it  come  to  your  observation 
that  the  writ  of  injunction,  in  its  issuance,  is  abused  in  any  way  at  ail? 

The  reply  was: 

Never.    They  are  really  very  hard  to  get. 
Then  he  was  asked : 

Is  there  any  suggestion  that  it  occurs  to  you  to  make  for  a  change  in  the  administra- 
tion of  the  law? 

And  he  replied: 

No;  not  even  the  one  contained  in  the  proposition  of  Mr.  Moon  in  the  last  Congress. 

The  Moon  proposition  was  offered  in  the  House  as  a  substitute  for 
the  Clayton  bill,  which  passed  the  House  by  a  vote  of  243  to  31. 

The  substitute  was  defeated  by  a  vote  of  48  to  220. 

I  can  not,  of  course,  quote  from  the  presidential  messages;  but 
during  Mr.  Roosevelt's  incumbency  he  urged  legislation  in  messages 
of  the  following  dates:  December  5,  1905,  January  31,  1908;  March 
25,  1908;  and  December  18,  1908.-  President  Tart  included  recom- 
mendations for  such  legislation  in  messages  dated  December  7,  1909, 
and  December  6,  1910.  Over  and  over  in  these  messages  it  was 
declared  that  abuses  exist  and  that  it  was  the  duty  of  Congress  to 
legislate  on  the  subject. 

Mr.  Davis,  of  West  Virginia,  a  member  of  the  House  Judiciary 
Committee,  summed  up  the  principal  forms  in  which  these  admitted 
abuses  have  appeared  in  a  speech  in  the  House  on  the  Clayton  bill, 
May  14,  1912.  He  was  answering  another  member  of  the  committee, 
who  had  asserted,  as  counsel  have  asserted  in  the  Senate  hearings, 
that  there  have  been  no  instances  of  judicial  abuse  herein.  Mr. 
Davis  said : 

I  accept  the  challenge  of  the  gentleman  from  Pennsylvania,  Mr.  Moon,  and  assert 
that  if  the  testimony  of  the  witnesses  before  the  committee  did  not  disclose  them,  still 
the  reported  cases  will  show  at  least  five  glaring  abuses  which  have  crept  into  the 
administration  of  this  remedy.  I  name  them: 

The  issuance  of  injunctions  without  notice. 

The  issuance  of  injunctions  without  bond. 

The  issuance  of  injunctions  without  detail. 

The  issuance  of  injunctions  without  parties. 

And  in  trade  disputes  particularly,  the  issuance  of  injunctions  against  certain  well- 
established  and  indisputable  rights.  These  are  the  evils  which  this  bill  seeks  to  cure. 

But  there  are  other  authorities  upon  the  necessity  for  legislation 
to  correct  not  only  uncertainties  hi  the  practice,  but  erroneous  views 
of  judges  as  to  their  powers.  I  quote  from  an  authority  which  has 
been  freely  quoted  by  counsel  in  opposition.  I  refer  "to  Martin's 
Law  of  Labor  Unions.  He  says  in  his  preface: 

There  is,  however,  a  great  lack  of  harmony  in  the  decisions  relating  to  trade  dis- 
putes, and  many  of  them,  it  is  believed,  are  erroneous  in  principle  and  oppressive 
and  unjust  to  organized  labor.  In  this  category  may  be  placed  decisions  which  hold 
without  qualification  that  strikes  or  threats  of  strikes  to  procure  the  discharge  or 


PENDING  BILLS   FOE   EEGULATING  INJUNCTIONS.  15 

prevent  the  employment  of  workmen  are  unlawful  and  criminal,  as  being  unwar- 
rantable interference  with  the  business  of  the  employer,  and  an  invasion  of  the  rights 
of  the  workmen  against  whom  these  acts  are  directed;  denying  unions  the  right  to  ex- 
ercise disciplinary  measures  in  accordance  with  their  rules  and  by-laws;  to  compel 
insubordinate  members  to  join  in  a  lawful  strike  or  continue  on  strike  after  going  out; 
holding  that  all  picketing  is  unlawful;  enjoining  unions  at  the  instance  of  an  em- 
ployer against  whom  a  strike  is  in  operation  from  giving  strike  pay  or  using  its  funds 
in  furtherance  of  picketing;  requiring  defendants  against  whom  a  writ  of  injunction, 
delective  and  ambiguous  in  its  terms,  has  been  awarded,  to  ascertain,  or,  more  prop- 
erly speaking,  to  attempt  to  ascertain  what  is  prohibited  by  reading  the  writ  in  con- 
nection with  the  bill. 

In  view  of  all  the  foregoing  utterances,  it  is  surprising  to  find  any- 
one to  claim  that  the  injunctive  remedy  should  not,  at  any  rate,  be 
safeguarded  in  its  issuance  and  enforcement  by  all  possible  checks  and 
formalities  to  prevent  its  abuse.  No  one  who  has  given  it  proper 
study  will  deny  that,  even  when  issued  within  the  jurisdiction,  it  is  a 
species  of  judicial  legislation.  And  since,  as  such,  it  is  legislation  by 
one  man,  the  restrictions  should  be  at  least  equal  to  those  by  which 
Congress  is  governed  in  the  enactment  of  statutes.  Upon  Congress 
are  imposed  constitutional  requirements;  and  in  addition  to  these  are 
the  rules  and  committee  service,  all  intended  to  prevent  imposition, 
possibility  of  abuse  of  privilege  and  surprise,  and  to  guard  against 
ambiguity  and  vagueness  in  the  language  of  enactments.  In  view 
of  all  this,  it  is  strange  that  to  this  time  no  restrictions  have  been 
placed  upon  the  judiciary  with  respect  to  these  methods  of  exercising 
their  extraordinary  powers.  An  injunction  may  always  develop  into 
an  ex  post  facto  law,  the  vindicatory  part  to  be  enacted  and  put  in 
force  after  the  doing  of  an  act  which^the  court  considers  or  construes 
to  be  a  violation. 

Justice  Baldwin,  in  Bonaparte  v.  Railroad  Co.  (217  Fed.  Cases, 
1617),  said: 

There  is  no  power  the  exercise  of  which  is  more  delicate,  which  requires  greater 
caution,  deliberation,  and  sound  discretion,  or  is  more  dangerous  in  a  doubtful  case 
than  the  issuing  of  an  injunction.  It  is  the  strong  arm  of  equity,  and  never  ought  to 
be  extended  unless  in  cases  of  great  injury,  where  courts  of  law  can  not  afford  an  ade- 
quate or  commensurate  remedy  in  damages.  The  right  must  be  clear,  the  injury  im- 
pending or  threatened,  so  as  to  be  averted  only  by  the  protective  preventive  process  of 
injunction  but  that  will  not  be  awarded  in  doubtful  cases,  or  new  ones  not  coming 
within  well-established  principles,  for  if  it  issues  erroneously,  an  irreparable  injury  is 
inflicted,  for  which  there  can  be  no  redress,  it  being  the  act  of  a  court,  not  of  the  party 
who  prays  for  it.  It  will  be  refused  till  the  court  are  satisfied  that  the  case  before 
them  is  of  a  right  about  to  be  destroyed,  irreparably  injured,  or  great  or  lasting  injury 
about  to  be  done  by  an  illegal  act. 

PROVISIONS    OF   THE    CLAYTON    BILL. 

The  first  section  of  the  bill  amends  section  263  of  the  Judicial  Code 
so  as  to  safeguard  the  first  step  in  a  proceeding  for  injunction.  It 
reads  as  follows: 

SEC.  263.  That  no  injunction,  whether  interlocutory  or  permanent,  in  cases  other 
than  those  described  in  section  266  of  this  title,  shall  be  issued  without  previous 
notice  and  an  opportunity  to  be  heard  on  behalf  of  the  parties  to  be  enjoined,  with 
notice,  together  with  a  copy  of  the  bill  of  complaint  or  other  pleading  upon  which 
the  application  for  such  injunction  will  be  based,  shall  be  served  upon  the  parties 
sought  to  be  enjoined  a  reasonable  time  in  advance  of  such  application.  But  if  it 
shall  appear  to  the  satisfaction  of  the  court  or  judge  that  immediate  and  irreparable 
injury  is  likely  to  ensue  to  the  complainant,  and  that  the  giving  of  notice  of  the 
application  or  the  delay  incident  thereto  would  probably  permit  the  doing  of  the 
act  sought  to  be  restrained  before  notice  could  be  served  or  hearing  had  thereon,  the 


16  PENDING  BILLS   FOR   BEGULATING   INJUNCTIONS. 

court  or  judge  may,  in  his  discretion,  issue  a  temporary  restraining  order  without 
notice.  Every  such  order  shall  be  indorsed  with  the  date  and  hour  of  issuance,  shall 
be  forthwith  entered  of  record,  shall  define  the  injury  and  state  why  it  is  irreparable 
and  why  the  order  was  granted  without  notice,  and  shall  by  its  terms  expire  within 
such  time  after  entry,  not  to  exceed  seven  days,  as  the  court  or  judge  may  fix, 
unless  within  the  time  so  fixed  the  order  is  extended  or  renewed  for  a  like  period, 
after  notice  to  those  previously  served,  if  any,  and  for  good  cause  shown,  and  the 
reasons  for  such  extension  shall  be  entered  of  record. 

The  formalities  and  safeguards  here  provided  in  section  263  are 
only  such  as  are  necessary,  in  view  of  what  I  have  already  set  forth; 
also  in  view  of  what  Justice  Baldwin  said  in  the  case  cited. 

Section  266a  adds  a  new  section  to  the  code  to  require  security  hi 
all  cases  and  reads  as  follows: 

SEC.  266a.  That  no  restraining  order  or  interlocutory  order  of  injunction  shall  issue 
except  upon  the  giving  of  security  by  the  applicant  in  such  sum  as  the  court  or  judge 
may  deem  proper,  conditioned  upon  the  payment  of  such  costs  and  damages  as  may 
be  incurred  or  suffered  by  any  party  who  may  be  found  to  have  been  wrongfully 
enjoined  or  restrained  thereby. 

I  now  read  from  Foster's  Federal  Practice,  page  753: 

Later  the  practice  (i.  e.,  the  practice  as  to  security)  was  extended  to  interlocutory 
injunctions  granted  upon  notice  to  the  defendant,  first  in  special  cases,  then  generally; 
and  now  they  (i.  e.,  bonds)  are  usually  required  as  a  matter  of  course  in  England  and 
in  most  of  the  United  States,  although  in  some  of  the  circuits  the  Federal  judges  are 
accustomed  to  grant  injunctions  without  such  requirement. 

Section  255b  of  the  bill  also  adds  a  new  section  to  the  code.  It 
reads  as  follows: 

SEC.  266b.  That  every  order  of  injunction  or  restraining  order  shall  set  forth  the 
reasons  for  the  issuance  of  the  same,  shall  be  specific  in  terms,  and  shall  describe  in 
reasonable  detail,  and  not  by  reference  to  the  bill  of  complaint  or  other  document,  the 
act  or  acts  sought  to  be  restrained,  and  shall  be  binding  only  upon  the  parties  to  the 
suit,  their  agents,  servants,  employees,  and  attorneys,  or  those  in  active  concert  with 
them,  and  who  shall  by  personal  service  or  otherwise  have  received  actual  notice  of 
the  same. 

There  can  be  no  greater  justice  than  that  parties  upon  whom  the 
edict  of  a  judge  falls,  often  without  notice,  shall  know  the  exact  con- 
dition in  which  it  places  him;  and  there  can  be  no  greater  injustice, 
no  greater  cruelty,  I  might  say,  than  to  impart  to  him  merely  a  vague 
or  indefinite  understanding  that  his  past  or  present  conduct  has  been 
already  condemned  by  the  court,  leaving  him  to  guess  as  to  his  proper 
deportment,  groping  in  darkness  with  fear  and  trembling  lest  he  be 
dragged  before  a  single  judge  and  sentenced  to  imprisonment  for  acts 
which  have  been  done  in  a  belief  that  he  was  not  answerable  before  a 
court. 

I  can  not  describe  all  the  defects  of  process  by  which  the  parties 
served  are  left  in  doubt  and  perplexity  and  exposed  to  oppression 
and  injustice.  But  it  is  a  common  bad  practice  to  include  in  these 
writs  and  orders,  at  the  end,  an  omnibus  or  basket  clause,  forbidding 
all  other  acts  of  similar  character,  or  referring  for  further  details  to 
the  prayer  of  the  bill,  in  the  hope  that  anything  which  might  have 
been  omitted  by  the  zealous  lawyer  will  be  corrected  by  the  court 
when  the  time  comes  for  punishing  the  party  for  contempt. 

It  is  claimed  that  the  present  practice  affords  ample  safeguards, 
that  there  are  no  precedents  justifying  the  provisions  of  this  section. 
In  view  of  my  investigation  and  study,  the  result  of  which  I  intend 
laying  before  the  committee,  I  can  scarcely  conceive  of  a  greater 
untruth.  The  present  law  affords  no  security  whatever  against 


PENDING  BILLS  FOR  EEGULATING  INJUNCTIONS.  17 

vague,  indefinite,  ambiguous,  misleading,  bewildering  commands  of 
the  courts.  The  Supreme  Court  rules,  which  have  been  again  and 
again  referred  to,  do  not  help  us  any  herein.  They  neither  cover 
the  subject  nor  do  they  conflict  with  anything  in  this  section.  I  will 
not  take  your  time  to  read  to  you  the  Supreme  Court  rules,  but  throw 
out  this  challenge,  and  counsel  may  call  any  conflicting  provision 
which  they  can  find  to  the  attention  of  the  committee. 

Among  the  many  authorities  I  might  cite  as  to  what  is  proper, 
commendable,  and  salutary  in  practice,  which  is  no  more  than  is 
aimed  at  in  this  section,  is  Foster's  Federal  Practice  (p.  745),  where 
it  is  said: 

The  writ  should  contain  a  concise  description  of  the  particular  acts  or  things  in 
respect  to  which  the  defendant  is  enjoined  and  should  conform  to  the  directions  of 
the  order  granting  the  injunction.  *  *  *  The  defendants  ought  to  be  informed, 
as  accurately  as  the  case  permits,  what  they  are  forbidden  to  do.  It  seems  that  a  writ 
is  insufficient  which  designates  the  acts  sought  to  be  enjoined  by  a  reference  to  the 
bill  without  describing  them. 

Now,  in  support  of  Mr.  Foster,  I  will  cite  Swift  &  Co.  v.  United 
States  (196  U.  S.,  376),  where  it  was  said: 

On  the  other  hand,  we  equally  are  bound  by  the  first  principles  of  justice  not  to  sanc- 
tion a  decree  so  vague  as  to  put  the  whole  conduct  of  the  defendant's  business  at  the 
peril  of  a  summons  for  contempt.  We  can  not  issue  a  general  injunction  against  all 
possible  breaches  of  the  law.  *  *  *  The  general  words  of  the  injunction  "or  by 
any  other  method  or  device,  the  purpose  an^  effect  of  which  is  to  restrain  commerce 
as  aforesaid, "  should  be  stricken  out.  The  defendants  ought  to  be  informed  as  accu- 
rately as  the  case  permits  what  they  are  forbidden  to  do. 

That  case  was  followed  in  New  York,  N.  H.  &.  H/R.  R.  Co.  v. 
I.  C.  Com.  (200  U.  S.,  404),  the  court  adding  to  what  was  said  in  the 
Swift  &  Co.  case  these  words,  here  especially  significant  and  relevant: 

To  accede  to  the  doctrine  relied  upon  would  compel  us,  under  the  guise  of  protect- 
ing freedom  of  commerce,  to  announce  a  rule  which  would  be  destructive  of  the 
fundamental  liberties  of  the  citizen. 

I  call  attention  to  the  fact  that  the  words  "  or  by  any  other  method 
or  device,  the  purpose  and  effect  of  which  is  to  restrain  commerce  as 
aforesaid/'  which  the  court  condemned  and  ordered  stricken  out  as 
a  menace  to  liberty,  are  the  rery  words  (or  equivalent  words)  which 
several  opponents  of  this  provision  strenuously  insist  should  be 
retained  as  part  of  the  practice  pursued  in  labor  cases.  In  so  insist- 
ing they  confess  themselves  unwilling  to  conform  to  correct  practice, 
as  laid  down  by  the  Supreme  Court,  and  admit  that  a  reprehensible 
different  practice  has  been  pursued. 

Members  of  the  Senate  committee  have  been  calling  for  some 
explanation  of  the  purpose  of  this  provision.  Some  of  you  may 
have  heard  of  blanket  injunctions.  Whether  you  have  or  not,  the 
labor  people  have,  and  I  would  not  say  that  their  meaning  is  known 
to  them,  because  that  is  something  past  finding  out.  But  they  have 
learned  from  sad  experience  of  their  effect.  Presently  I  shall  exhibit 
to  you  several  specimens  of  the  article,  some  placed  in  the  record  by 
Mr.  Monaghan  and  some  by  myself;  but  first  I  wish  to  call  your  atten- 
tion to  what  I  would  not  call  practice,  but  malpractice,  amounting  to 
crime.  It  is  one  of  the  most  important  phases  of  this  subject,  and  is 
alone  a  justification  for  all  these  first  three  sections.  I  refer  to  the 
devices  and  tricks  of  injunction  lawyers  by  which  they  wreak  upon 
workmen  on  strike  all  the  disastrous  consequences  of  an  injunction 
57939°— 12 2 


18  PENDING  BILLS  FOB  BEGULATING   INJUNCTIONS. 

rightfully  issued,  but  without  any  basis  of  right,  justice,  or  law,  and 
yet  escape  all  risk  and  responsibility  of  being  themselves  called  to 
account  or  their  clients  incurring  any  liability. 

In  the  first  place,  the  complaint,  though  usually  voluminous,  is  filled 
with  irrelevant  and  immaterial  allegations  and  is  defective  in  material 
essential  specifications.  Such  complaint  will  be  presented  to  a  judge, 
who  naturally  shrinks  from  going  through  and  scrutinizing  a  long  doc- 
ument. He  relies  in  part  upon  the  attorney's  representations  of  what 
he  can  prove  and  issues  a  restraining  order, 'already  prepared,  and  that 
is  usually  a  drastic,  comprehensive  injunction,  often  so  stringent  that  it 
barely  leaves  the  defendants  room  to  breathe.  He  serves  the  order 
on  a  few  of  the  leaders  among  those  participating  in  the  trouble  and 
takes  care  that  his  sharp  practice  is  immediately  exploited  hi  the  press. 
Now,  even  the  leaders  can  seldom  understand  the  matter  even  with  the 
help  of  such  lawyers  as  they  are  able  to  employ. 

We  hear  about  disobedience  in  such  cases  and  about  the  necessity  of 
serving  hundreds  and  thousands  of  men.  It  is  all  moonshine.  There 
may  be  rare  exceptions;  but,  as  a  rale,  whether  several  or  many  are 
served,  all  hear  of  it  and  all  are  completely  demoralized  and  discour- 
aged. No  matter  how  just  their  side  of  the  dispute,  the  very  fact  that 
a  court  possessing  plenary  and  arbitrary  powers  has  interfered  on  the 
other  and  stronger  side,  the  side  of  capitalistic  and  police  power,  is  an 
insuperable  obstacle  to  winning  the  strike.  So  what  is  the  use  to 
appear  and  defend?  Mr.  Monaghan  is  correct  at  least  in  his  state- 
ment as  to  the  effect  of  a  restraining  order  or  injunction.  It  is  true 
that  few  injunction  cases  involving  labor  disputes  are  reported.  The 
first  act  of  the  judge  is  as  destructive  to  the  strike  as  would  be  a  volley 
of  musketry,  with  its  incidental  carnage. 

What  becomes  of  the  complaint  or  affidavits  ?  It  is  a  subject  that 
some  committee  ought  to  investigate.  As  a  rule,  the  complaint  dis- 
appears immediately.  The  clerks  are  usually  very  accommodating 
to  the  attorneys  for  big  employers  of  labor;  besides,  in  some  jurisdic- 
tions the  attorneys  are  allowed  to  retain  the  original  papers.  In 
1906,  when  I  first  appeared  before  the  House  Judiciary  Committee, 
I  tried  in  vain  to  obtain  copies  of  complaints  in  some  of  these  cases. 
About  that  time  an  injunction  was  issued  in  the  District  of  Columbia, 
which  I  thought  and  still  think  a  clear  abuse.  I  applied  at  the  clerk's 
office  while  the  case  was  fresh,  but  found  that  the  attorneys  had 
withdrawn  the  papers.  Upon  application  to  them  it  was  claimed 
that  they  had  been  mislaid — at  any  rate,  I  could  not  get  a  look  at 
the  complaint.  All  that  I  could  make  available  was  the  order. 

In  the  course  of  his  argument,  Mr.  Monaghan  made  very  broad 
assertions  as  to  the  hesitancy  of  the  courts  to  grant  injunctions  and 
their  careful  scrutiny  of  applications.  He  gave  a  surprisingly  small 
number  as  having  been  issued  in  labor  disputes.  Being  pressed  by 
the  committee,  he  admitted  that  his  estimate  was  based  only  on 
reported  cases.  He  also  admitted  that  in  many  cases  no  report 
was  available.  Of  course  not.  The  injunctions  and  restraining 
orders  against  strikers  run  into  the  hundreds  every  year.  He  was 
requested  to  produce  records,  orders,  and  injunctions.  He  has  pro- 
duced just  three  complaints,  with  accompanying  affidavits,  and  the 
record  contains  just  15  out  of  3  times  that  number  of  orders  and 
injunctions  issued  on  application  of  his  clients  alone. 


PENDING  BILLS  FOR   REGULATING   INJUNCTIONS.  19 

The  second  clause  of  section  266b  says  of  the  injunction  or  restrain- 
ing order  that  '  'it  shall  be  binding  only  on  the  parties  to  the  suit,  their 
agents,  servants,  employees,  and  attorneys,  or  those  in  active  con- 
cert with  them,  and  who  shall  by  personal  service  or  otherwise  have 
received  actual  notice  of  the  same." 

Notwithstanding  all  criticisms  hurled  against  this  provision  by 
learned  and  ingenious  counsel,  I  insist  that  it  embodies  the  law  as  it 
now  is  according  to  best  authorities,  and  that  to  have  it  otherwise, 
even  if  courts  confined  themselves  to  rightful  jurisdiction,  leaves  the 
way  open  to  intolerable  abuses  and  judicial  tyranny  of  a  character 
which  will,  unless  corrected  soon,  overturn  the  Republic  and  establish 
despotism  on  its  ruins. 

Time  and  again  have  we  been  referred  to  the  Debs  case  as  a  prece- 
dent and  basis  for  the  opposition  to  this  provision.  I  deem  it  worth 
while  to  call  special  attention  to  that  case  again  and  in  this  connec- 
tion. It  is  first  to  be  noted  that  the  case  in  the  lower  court  was  not 
the  case  heard  in  the  Supreme  Court.  The  excesses  and  superfluities 
of  the  writ  were  not  before  the  supreme  court.  Debs  was  a  party 
named  in  the  writ,  and  had  been  served.  No  defect  or  excess  of  any 
pleading  or  process  was  there  involved.  It  was  a  habeas  corpus  pro- 
ceeding, and  therefore  necessarily  turned  on  a  question  of  the  lower 
court's  jurisdiction.  I  claim  that  the  order  and  writ  in  the  lower 
court  were  monstrosities,  but  whether  they  were  or  not  is  a  question 
never  judicially  passed  upon  in  that  case. 

In  addition  to  forbidding  about  everything  that  men  could  con- 
ceive of  or  imagine,  the  order  named  certain  defendants,  of  whom 
Debs  was  one,  and  then  commanded  and  enjoined  "all  other  persons 
whatsoever."  A  learned  commentator,  writing  in  the  Harvard  Law 
Review  of  the  period  (8  Harv.  L.  Rev.,  228),  and  speaking  dispas- 
sionately, said: 

It  is  difficult  to  see  how  such  injunctions  can  stand  the  test  of  precedent  and  prin- 
ciple. An  injunction  issues  in  a  civil  suit  to  any  party  who  has  been  complained  of, 
at  least,  and  has  had  notice  of  the  motion  of  his  adversary.  To  be  obliged  to  wait  until 
the  injunction  has  been  violated  to  determine  against  whom  it  was  issued  ought  to  be 
enoiigh  to  show  that  it  is  not  an  injunction  at  all,  but  in  the  nature  of  a  police  procla- 
mation, putting  the  community  in  general  in  peril  of  contempt  of  court  if  the  procla- 
mation be  disobeyed.  Courts  of  equity  were  evidently  not  intended  to  possess  such 
functions,  and  it  must  be  regretted  that  Judge  Grosscup,  in  his  most  commendable 
eagerness  to  offset  the  criminal  inaction  of  Gov.  Altgeld,  should  have  been  forced  to 
such  a  legal  anomaly.  The  power  of  a  court  to  imprison  for  contempt  of  its  orders  or 
of  the  persons  of  its 'judges  is  an  arbitrary  one  at  best,  and  to  stretch  it  as  here  in  the 
time  of  disorders  and  almost  panic  in  the  immediate  vicinity  would  seem  to  show  that 
the  court  has  been  deserted  by  the  calm  judicial  temper  which  should  always  char- 
acterize its  proceedings. 

But  the  loose,  deplorable,  and  reprehensible  practices  w^hich  this 
provision  condemns  and  would  end  have  been  expressly  condemned 
by  the  Supreme  Court,  both  in  its  rules  and  decisions.  "  Equity  rule 
48  provides  as  follows: 

Where  the  parties  on  either  side  are  very  numerous  and  can  not  without  manifest 
inconvenience  and  oppressive  delays  in  the  suit  be  all  brought  before  it,  the  court,  in 
its  discretion,  may  dispense  with  making  all  of  them  parties  and  may  proceed  in  the 
suit,  having  sufficient  parties  before  it  to  represent  all  the  adverse  interests  of  the 
plaintiffs  and  the  defendants  in  the  suit  properly  before  it.  But  hi  such  cases  the 
decree  shall  be  without  prejudice  to  the  rights  and  claims  of  all  the  absent  parties. 

Scott  v.  McDonald  (165  U.  S.,  107)  was  a  case  arising  under  the 
South  Carolina  dispensary  law.  A  writ  of  injunction  had  been 


20  PENDING  BILLS  FOB  KEGULATING  INJUNCTIONS. 

applied  for  to  and  issued  by  the  circuit  court.  The  defendants  were 
certain  parties  named  and  "all  other  persons  claiming  to  act  as  con- 
stables, and  all  sheriffs,  policemen,  and  other  officers  acting  or  claim- 
ing to  act  under  the  South  Carolina  dispensary  law."  When  that 
injunction  came  before  the  Supreme  Court  of  the  United  States  it 
laid  down  a  rule  which  I  claim  is  that  laid  down  in  the  provision  of 
this  bill  now  under  consideration.  The  court  said: 

The  decree  is  also  objectionable  because  it  enjoins  persons  not  parties  to  the  suit. 
This  is  not  a  case  where  the  defendants  named  represent  those  not  named.  Nor  is 
there  alleged  any  conspiracy  between  the  parties  defendant  and  other  unknown 
parties.  The  acts  complained  of  are  tortious  and  do  not  grow  out  of  any  common 
action  or  agreement  between  constables  and  sheriffs  of  the  State  of  South  Carolina. 
We  have,  indeed,  a  right  to  presume  that  such  officers,  though  not  named  in  this 
suit,  will,  when  advised  that  certain  provisions  of  the  act  in  question  have  been 
pronounced  unconstitutional  by  the  courts  to  which  the  Constitution  of  the  United 
States  refers  such  questions,  voluntarily  refrain  from  enforcing  such  provisions;  but 
we  do  not  think  it  comports  with  well-settled  principles  of  equity  procedure  to  include 
them  in  an  injunction  in  a  suit  in  which  they  were  not  heard  or  represented,  or  to 
subject  them  to  penalties  for  contempt  in  disregarding  such  an  injunction.  (Fellows 
v.  Fellows,  4  John  Chan.,  25,  citing  Iverson  v.  Harris,  7  Yes.,  257.) 

The  decree  of  the  court  below  should  therefore  be  amended  by  being  restricted 
to  the  parties  named  as  plaintiff  and  defendants  in  the  bill,  and  this  is  directed  to 
be  done,  and  it  is  otherwise  affirmed. 

Not  speaking  with  especial  reference  to  labor  disputes,  the  unwar- 
ranted comprehensiveness  of  restraining  orders  is  well  designed  to 
defeat  the  rule  as  to  parties  and  drag  into  the  toils  of  litigation  just 
the  number  required  in  order  to  defeat  every  purpose  of  a  strike, 
whether  or  not  those  so  enmeshed  have  done  more  than  merely 
assume  a  negative  attitude  by  the  severance  of  relations  and  have 
patiently  and  steadily  preserved  it.  It  is  not  every  lawyer  even  who 
would  be  able  to  analyze  and  draw  the  line  between  the  legal  dis- 
crepancies in  such  a  case  and  take  the  proper  steps  to  preserve  the 
rights  of  unoffending  persons  held  to  account  as  participants  in  illegal 
conduct  without  being  even  mentioned  by  name  on  the  complaint  or 
order.  Is  it  any  wonder,  then,  that  advantage  has  been  taken  of  the 
loose  and  inconsiderate  practice  which  these  representative  orders 
show  the  courts  have  sanctioned  and  of  which  workingmen  complain  ? 

I  will  here  mention  one  or  two  terms  often  loosely  used  by  the 
courts:  "Combination"  and  "conspiracy"  describe  illegal  associa- 
tions, and  their  meanings  are  the  same  for  all  practicable  legal  pur- 
poses. " Association "  primarily  denotes  an  entirely  legal  relation 
between  the  members.  It  is  often  said,  however,  by  the  courts,  when 
a  body  of  organized  labor  embarks  upon  an  illegal  undertaking,  that 
it  is  a  combination  or  conspiracy,  an  expression  signifying  that  the 
association  itself  has  become  unlawful  or  criminal. 

In  legal  essence  all  illegal  acts  of  the  membership  of  such  an  asso- 
ciation, whether  done  by  them  singly  or  collectively,  are  perpetrated 
beyond  and  outside  its  purpose  and  should  impose  no  legal  conse- 
quence by  way  of  injunction  or  otherwise  upon  the  association  as 
such  or  upon  its  members  as  such.  In  Pickett  v.  Walsh  (192  Mass., 
572,  589)  the  court  said: 

There  is  a  point  of  practice  which  must  be  noticed.  As  we  have  said,  the  plaintiffs 
have  undertaken  to  make  three  unincorporated  labor  unions  parties  defendant.  That 
is  an  impossibility.  There  is  no  such  entity  known  to  the  law  as  an  unincorporated 
association,  and  consequently  it  can  not  be  made  a  party  defendant. 

Often  has  this  well-established  rule  of  law  been  completely  over- 
looked or  ignored  in  labor  cases.  That  this  principle  was  willfully 


PENDING  BILLS  FOE  REGULATING  INJUNCTIONS.  21 

and  knowingly  violated  in  all  the  cases  in  which  Mr.  Monaghan  was 
counsel  for  complainants  is  seen  by  placing  side  by  side  the  bills  of 
complaint  which  he  placed  in  the  record  and  his  admission  at  page  58 
of  the  hearings,  where  he  said: 

We  can  not  sue  the  union  as  a  voluntary  unincorporated  association  because  there 
is  no  statute  upon  the  books  of  the  Federal  Government  which  permits  a  suit  against 
a  voluntary  unincorporated  organization  as  such. 

The  doctrine  of  ultra  vires  should  apply  here  as  in  the  case  of  cor- 
porations. According  to  that  doctrine  illegal  acts  done  by  officers 
and  stockholders  create  personal  liability  only,  and  in  no  way  bind 
the  corporation.  But  only  in  rare  instances  have  the  courts  given 
the  labor  organizations  the  benefit  of  the  application  of  the  doctrine, 
and  in  many  cases  have  brought  into  the  litigation  and  held  to  account 
the  entire  membership,  though  the  vast  majority  had  never  pre- 
viously heard  of  the  acts  done  or  had  any  intention  to  participate 
in  doing  them.  In  Bucks  Stove  &  Range  Co.  v  American  Federation 
of  Labor  and  others  the  boycott  was  instituted  and  prosecuted 
mainly  by  the  St.  Louis  Labor  Council,  not  connected  in  any  sense 
with  the  national  organization.  The  officers  of  the  latter  merely 
placed  the  complainant  on  an  unfair  list  in  the  official  magazine. 
Not  more  than  a  few  hundred,  or  at  most  a  few  thousand,  persons 
knew  of  the  boycott.  And  yet  the  American  Federation,  as  a  volun- 
tary association,  and  each  of  its  million  and  a  half  of  members  were 
enjoined  and  rendered  liable  to  punishment  for  contempt. 

That  is  therefore  a  wise  provision  of  this  bill  which  requires  per- 
sonal notice  to  all  parties  whom  it  is  sought  to  bind  with  orders 
granting  injunctions  and  restraining  orders. 

In  the  hearings  before  the  House  committee  have  been  placed  from 
time  to  time  various  restraining  orders  and  injunction  writs.  Alto- 
gether, if  inserted  here  they  would  needlessly  occupy  much  space. 
A  description  of  their  excesses  and  omissions  alone  will  suffice  to  show 
the  necessity  of  this  bill. 

The  first  instance  to  be  noticed  is  Kansas  &  Texas  Coal  Co.  v. 
Denney,  decided  in  the  district  court  for  Arkansas.  And  here,  as  in 
most  of  such  cases,  no  full  official  report  of  the  case  can  be  obtained 
from  the  published  reports,  but  only  a  mere  memoranda.  The  trouble 
and  expense  of  procuring  certified  copies  of  the  records  have  had  to  be 
resorted  to  in  some  instances.  In  this  case  the  defendants  (strikers) 
were  ordered  to  be,  and  were,  enjoined  from  "congregating  at  or  near 
or  on  the  premises  or  the  property  of  the  Kansas  &  Texas  Coal  Co.  in, 
about,  or  near  the  town  of  HurTtington,  Ark.,  or  elsewhere,  for  the 

Surpose  of  intimidating  its  employees  or  preventing  said  employees 
•om  rendering  service  to  the  Kansas  &  Texas  Coal  Co.;  from  inducing 
or  coercing,  by  threats,  intimidation,  force,  or  violence,  any  of  said 
employees  to  leave  the  employment  of  the  said  Kansas  &  Texas  Coal 
Co.;  or  from  in  any  manner  interfering  with  or  molesting  any  person 
or  persons  who  may  be  employed  or  seek  employment  by  and  of  the 
Kansas  &  Texas  Coal  Co.  in  the  operation  of  its  coal  mines  at  or  near 
said  town  of  Huntington  or  elsewhere." 

It  will  be  observed  that  a  defendant  in  that  suit  would  render  him- 
self liable  to  punishment  for  contempt  if  he  met  a  man  seeking  employ- 
ment in  a  foreign  country  and  persuaded  him  not  to  enter  its  service. 
In  the  case  of  Adams  v.  Typographical  Union  in  the  Supreme 
Court  of  the  District  of   Columbia  no   mention  was  made  of  the 


22  PENDING  BILLS  FOE  REGULATING  INJUNCTIONS. 

filing  of  any  complaint  or  of  any  reason  whatever  why  the  parties 
were  restrained.  Striking  through  the  typographical  union,  all  its 
members  were  dragged  in — those  who  had  and  those  who  had  not 
done  the  forbidden  acts  were  placed  on  the  same  footing  of  condem- 
nation. The  union,  a  mere  word  sign  in  legal  sense,  was  impleaded 
as  a  defendant.  We  find  in  the  order  this  broad,  almost  limitless, 
command  and  prohibition,  "from  interfering  with  any  of  the  com- 
plainants in  the  conduct  of  their  business  for  the  purpose  of  prevent- 
ing them  from  conducting  the  same  hi  their  own  lawful  way."  Also 
this: 

Such  injunction  to  remain  in  force  during  the  pendency  of  this  proceeding,  or  until 
the  further  order  of  the  court. 

This  was  not  a  restraining  order,  but  an  injunction,  issued  at  and 
upon  filing  the  complaint.  There  isn't  a  word  in  the  compliant  in 
tne  case  about  loss  or  financial  detriment  to  result  from  the  acts  of 
the  defendants.  It  is  also  observable  that  the  order  contained  not  a 
word  to  show  why  it  was  issued,  not  even  a  mention  of  the  filing  of  a 
complaint.  It  gave  the  parties  no  day  in  court  for  the  purpose  of 
getting  rid  of  it,  nor  was  any  other  relief  prayed  other  than  the 
advantage  to  accrue  to  the  complaintants  by  the  issuance  of  the 
injunction.  There  have  been  many  such  orders  and  injunctions 
issued  in  the  first  instance  here  in  the  District. 

In  the  Bucks  Stove  &  Range  case  the  order  was  so  long  and  in- 
volved that  a  busy  man  would  almost  prefer  paying  a  fine  to  having 
to  read  it.  Among  other  matters  were  these  words : 

And  froni  interfering  in  any  manner  with  the  sale  of  the  product  of  the  complain- 
ant's factory  or  business  by  defendants,  or  by  any  other  person,  firm,  or  corporation. 

Now,  if  one  of  the  million  and  a  half  persons  dragged  in  by  using 
the  associate  name  or  anyone  else  had  a  stove  or  range  to  sell,  he  was 
forbidden  to  tell  a  prospective  purchaser  that  it  was  a  better  article 
than  that  offered  by  the  complainant;  much  less  could  he  tell  him 
that  complainant  was  unfair  to  labor.  They  were  forbidden  "from 
declaring  or  threatening  a  boycott  against  the  complainant  or  its 
business  or  the  product  of  its  factory."  Such  a  clause  is  clearly 
forbidden  by  the  Supreme  Court  in  Swift  &  Co.  v.  U.  S.  and  in  the 
Chesapeake  Coal  case,  elsewhere  pited.  But  if  the  goods  were  of 
inferior  quality,  the  defendants  couldn't  mention  the  fact  to  their 
friends  or  relations;  neither  the  American  Federation  of  Labor  nor  any 
of  its  members  could  declare  a  primary  boycott  against  the  com- 
plainant for  any  cause.  And  I  note  that  the  complaint  was  pro- 
jected on  the  theory  of  a  secondary  boycott,  and  toward  the  close 
we  have  in  the  restraining  order  this  swooping  overlapping  clause 
"and  in  any  manner  whatsoever  impeding,  obstructing,  interfering 
with,  or  restraining  the  complainant's  business,  trade,  or  commerce." 
This  also  was  exactly  the  excess  which  the  court  in  the  Swift  and 
Chesapeake  Coal  cases  condemned  as  dangerous  to  personal  liberty. 

I  will  not  go  into  the  details  of  the  Alaska  case,  since  we  are  not 
much  surprised  at  anything  happening  there.  But  the  order  had  all 
the  usual  excesses,  including  the  usual  catch-all  clause  running  to  the 
end  of  time  and  covering  all  possible  activities  of  the  defendants.  It 
also  assumed  to  drag  in  all  tne  members  of  the  union,  wherever  they 
niight  be  or  however  circumstanced,  by  the  simple  expedient  o"f 
impleading  the  union  as  a  defendant. 


PENDING  BILLS  FOE  EEGtJLATING  INJUNCTIONS.  23 

In  the  Massachusetts  case  it  will  be  noted  that  the  union  was 
impleaded  according  to  the  usual  bad  practice,  and  with  the  Supreme 
Court's  decision  in  rickett  v.  Walsh  staring  them  in  the  face.  This 
order  enjoins  them  "to  desist  and  refrain  from  interfering  with  the 
business  of  the  complainants,  or  any  of  them,  by  the  use  of  threats, 
force,  or  intimidation,  with  anyone  seeking  employment  as  seaman 
with  any  of  the  complainants  or  their  agents,  or  by  the  use  of  promises 
to  pay  board,"  etc.  The  order  here  fan's  to  state  that  any  complaint 
had  been  filed,  but,  "whereas  it  has  been  represented  unto  us  by  the 
complainants,"  naming  them,  "that  the  said  complainants  have 
exhibited  a  bill  of  complaint,"  etc.  No  complaint  in  such  a  case 
under  any  correct  system  of  pleading  could  possibly  have  shown  a 
cause  of  action  in  more  than  one  complainant,  and  yet  here  were  a 
dozen  joined,  no  doubt  with  a  view  to  overawing  the  defendants  into 
submission. 

The  order  in  the  West  Virginia  case  (Hitchman  C.  &  C.  Co.  v. 
Mitchell  et  al.)  possesses  the  vice  of  not  containing  the  name  of 
either  complainant  or  defendant.  It  is  more  in  the  form  of  a  procla- 
mation by  a  military  commander  or  provisional  governor  of  a  con- 
quered province  in  war  times  than  anything  I  can  think  of.  Under 
that  order  it  would  have  been  dangerous  for  any  member  of  the  union 
to  have  made  any  statement  or  representation  whatever  about  the 
complainant  or  complainant's  business  to  anyone  seeking  employ- 
ment with  the  complainant,  even  if  the  person  seeking  employment 
had  asked  for  information.  It  was  what  might  be  termed  a  roving 
injunction,  calculated  to  catch  and  bind  anyone  upon  whom  it  might 
be  served  or  to  whose  attention  it  might  be  called. 

I  will  not  attempt  to  make  extracts  from  it.  It  is  all  so  bad  that 
I  would  not  know  where  to  begin  or  end.  It  was  issued  by  United 
States  Judge  Dayton,  and  is  attested  by  the  clerk  of  his  court,  though 
not  signed  by  the  judge.  That  thing  was  entitled  and  styled  a  re- 
straining order,  but  had  all  the  terms  and  legal  effect  to  be  found  hi 
any  permanent  inj unction.  Its  drastic,  far-reaching,  and  stringent 
prohibitions  were  introduced  with  the  words  "it  is  therefore  ad- 
judged, ordered,  and  decreed  by  the  court,"  etc.  There  is  not  in 
it  a  line  or  word  to  inform  the  reader  as  to  the  offenses  or  wrongs 
charged  against  them.  There  was  no  notice  nor  order  nor  opportunity 
to  show  cause  why  the  order  should  not  stand  until  the  day  set  for 
final  hearing,  nor  any  way  to  get  rid  of  it  upon  any  ground  until  the 
end  of  a  protracted  and  expensive  litigation.  And  hi  order  to  make 
the  destruction  of  the  rights  of  the  defendants  all  the  more  complete 
and  certain,  the  hearing  was  set  2  months  and  21  days  after  the  date 
of  its  issuance. 

Before  discussing  in  detail  the  court  records  produced  by  Mr. 
Monaghan,  attorney  for  the  founders'  association,  I  will  call  atten- 
tion to  the  showing  of  the  records  produced  by  him  with  reference 
to  the  practice  which  has  characterized  the  conduct  of  such  cases. 
In  the  first  place,  we  note  that  each  and  every  attorney  lor  these 
industrial  corporations  denies  emphatically  that  any  court  has  in 
any  instance  abused  its  power  or  exceeded  its  jurisdiction  and  has 
asserted,  apparently  with  entire  candor,  that  the  most  that  can  be 
imputed  to  the  judges  is  an  occasional  error  or  irregularity. 

Now,  Mr.  Monaghan  admitted  that  some  injunctions  and  restrain- 
ing orders  had  issued  of  which  he  would  be  unable  to  obtain  any  data 


24  PENDING  BILLS  FOE  KEGULATING  INJUNCTIONS. 

or  record.  That  sounds  a  little  strange  to  those  familiar  with  the 
essentials  of  proper  and  regular  court  procedure.  But  those  at  any 
rate  who  know  the  reckless  and  oppressive  uses  of  injunctions  in 
labor  disputes  are  not  surprised.  It  often  happens  that  they  get  a 
drastic  order  or  injunction  and  then,  after  it  has  done  its  deadly 
work,  it  disappears. 

Mr.  Monaghan  thought  he  could  at  any  rate  produce  a  certain 
number  of  recorols;  and  in  response  to  the  urgent  request  of  the 
committee,  promised  to  produce  34  at  least.  He  produced  and 
placed  in  the  record  just  3  complaints,  and  restraining  orders  and 
injunctions,  both,  to  the  number  of  15.  It  is  fair  to  assume  that 
he  did  not  discriminate  against  his  clients  or  himself  in  making 
the  selections.  Although  those  he  was  unable  to  locate  and  pro- 
duce may  be  worse  than  those  he  has  placed  in  the  record,  I  do  not 
care  to  see  them.  These  are  bad  enough.  Those  produced  bear 
internal  evidence  of  having  been  prepared  by  competent  and  pains- 
taking lawyers  in  Cincinnati  seeking  to  make  the  best  possible  show- 
ing with  such  materials  in  the  way  of  facts  as  were  available.  And 
yet  how  utterly  lacking  in  essential  allegations  as  a  basis  for  the 
exercise  of  equitable  jurisdiction  through  the  extraordinary  strong- 
arm  process  of  injunction.  First  we  have  the  complaint  in  the 
Greenwald  Co.  case,  upon  which  an  injunction  was  granted  by  a 
judge  of  the  Supreme  Court  at  Cincinnati.  It  recites,  of  course,  that 
the  complainant  has  large  capital,  large  business,  and  employs  a  large 
number  of  men,  allegations  which  are  always  deemed  important  by 
counsel  who  prepare  and  judges  who  issue  these  writs.  It  impleads 
three  labor  unions  as  defendants,  and  through  that  contrivance 
drags  in  their  members  to  the  number  of  hundreds,  perhaps  thousands, 
as  parties  to  a  complaint  charging  criminal  conspiracy,  most  of 
whom  must  have  resided  at  a  distance  and  have  been  utterly  inno- 
cent of  knowledge  of  the  acts  charged,  or  even  of  the  situation  at 
the  scene  of  the  dispute. 

The  nearest  approach  to  a  charge  of  trespass,  hence  the  only 
threatened  injury  to  a  property  right,  found  in  the  complaint  is 
that  the  defendants  selected  and  detailed  "  large  numbers  of  persons 
called  pickets  to  constantly  watch  and  beset  the  approach  to  plain- 
tiff's foundry"  without  stating  whether  the  congregating  was  in  the 
street  or  on  private  property  with  the  owner's  consent,  whether  it 
was  near  the  entrance  or  a  mile  away.  But  the  real  grievance,  as  is 
plainly  seen  by  reading  the  complaint,  is  the  charge  that  the  union 
was  on  strike  and  their  officers,  associates,  and  confederates  are  all 
combining  and  confederating  together  for  the  purpose  of  preventing 
the  employees  of  plaintiff  who  are  desirous  of  working  from  contin- 
uing in  its  employ,  and  also  of  preventing  others  from  entering  the 
employment  of  plaintiff."  It  is  not  necessary  to  attempt  to  analyze 
or  to  point  out  the  weak  features  of  the  two  other  complaints — one  in 
the  United  States  Circuit  Court  for  the  Eastern  District  of  Kentucky 
and  the  other  in  the  United  States  Circuit  Court  for  the  Southern 
District  of  Ohio.  They  are  open  to  the  same  criticisms,  not  differing 
in  essentials  from  that  just  noticed.  Nor  is  it  necessary  to  discuss 
orders  or  injunctions  issued  on  the  complaints  further  than  to  speak 
of  their  vagueness,  comprehensiveness,  and  utter  recklessness  and 
disregard  for  justice^  legal  formalities,  and  private  rights,  of  which 
they  contain  conclusive  proof. 


PENDING  BILLS  FOB  REGULATING  INJUNCTIONS.  25 

I  have  also  before  me  as  part  of  the  House  hearings  the  complaint 
in  Hitchmaji  Coal  &  Ooke  Co.  v.  John  Mitchell  and  others.  This 
complaint  is  exceedingly  profuse,  setting  forth  many  transactions, 
industrial  conditions,  and  isolated  facts  of  individuals  in  different 
parts  of  the  country,  but  falling  far  short  of  an  injury  to  property  or 
property  right,  as  n  the  pleader  were  describing  the  incidents  of  a 
political  campaign  and  its  effect  on  business.  This  complaint  is  a 
slight  variation  from  the  usual  form  in  the  matter  of  parties.  In- 
stead of  making  the  half  dozen  large  labor  organizations  parties 
defendants,  it  seeks  to  bring  in  their  memberships,  whether  within 
the  judicial  district,  in  the  Eastern  or  Western  States,  or  in  Alaska, 
and  to  subject  them  to  the  order  then  and  there  made,  by  suing  their 
officers  hi  a  representative  capacity.  This  is  merely  a  slight  varia- 
tion of  the  abuse  of  process  and  of  fraudulent  and  bogus  procedure. 
The  charges,  as  you  would  see  if  you  examined  the  complaint,  are  of 
acts  and  conduct  forbidden  by  the  order  on  the  sole  ground  of  their 
unlawfulness.  The  legal  mind  can  not  conceive  of  such  a  thing  as 
proceeding  by  representation  in  such  a  case.  It  is  a  maxim  of  the 
law  that  there  can  not  be  an  agency  created  to  violate  the  law,  nor 
any  such  thing  as  joint  recovery  against  or  joint  li ability  of  tort- 
feasors,  nor  can  individuals  be  joined  as  parties  defendant  in  such  a 
case  unless  they  can  be  shown  to  have  conspired  together  as  such 
or  to  have  acted  or  to  be  acting  in  concert.  But  you  will  search  in 
vain  through  this  complaint  to  find  an  allegation  showing  a  coming 
together1  hi  any  act  of  illegality  such  as  would  either  show  concert  of 
action  or  anything  upon  which  to  proceed  against  them,  except  the 
bare  fact  that  those  named  were  officers  of  labor  organizations  and 
that  the  vast  number  not  designated  by  any  name  were  members  of 
such  organizations. 

The  prayer  simply  asked,  in  minute  detail,  for  restraint  and  pro- 
hibition upon  every  act  and  proceeding  conceivable  or  which  could  be 
imagined  tending  toward  success  of  the  unionists  in  their  attempt  to 
unionize  the  miners  in  that  region  and  improve  the  deplorable  con- 
ditions there  existing,  and  the  order  followed  the  prayer,  with  a  few 
extra  dashes  and  colors.  If  obeyed  according  to  its  letter  and  spirit, 
it  completely  stilled  the  tongues  and  paralyzed  every  activity  of  the 
defendants  and  of  their  associates  and  sympathizers.  No  one  reading 
this  record  can  fail  to  see  that  neither  the  corpus  nor  the  possession  of 
property  was  endangered  or  threatened  and  that  the  sole  purpose  of 
the  proceeding  was  to  exile  from  the  district  all  not  willing  to  renounce 
their  union  connections  and  peacefully  and  submissively  accept  em- 
ployment with  the  company  on  its  own  terms  and  conditions. 

Such  complaints  and  orders  have  common  phases,  features,  and 
purposes.  The  injury  to  property  is  seldom  the  thing  sought  to  be 
provided  against,  nor  is  the  protection  of  property  or  property  rights 
the  object  in  view.  Organized  strikers  always  respect  property  rights. 
They  seldom  even  disturb  peaceful  possession.  The  purpose  of  these 
suits  is  the  unfair  use  of  a  powerful  weapon  against  labor's  side  in 
these  legitimate  trade  conflicts. 

Kule  86  of  the  Supreme  Court,  placed  in  the  Senate  hearings  at  page 
68,  contains  nothing  in  conflict  with  the  provisions  of  this  section,  and 
the  two  Supreme  Court  decisions  which  I  have  cited  may  be  treated 
as  a  proper  construction  of  the  rule. 


26  PENDING  BILLS  FOE  REGULATING  INJUNCTIONS. 

IRREGULARITIES    IN    BRINGING    IN    PARTIES   DEFENDANTS. 

t 

I  wish,  now  to  point  out  in  a  more  general  way  than  heretofore  the 
evils  which  have  resulted,  and  are  likely  to  continue  to  result,  in  the 
matter  of  parties  defendants.  Men  have  been  hauled  before  courts 
and  fined  and  imprisoned  for  acts  which,  though  within  the  terms  of 
an  injunction,  were  not  necessarily  connected  with  the  controversy 
between  the  parties. 

It  is  obvious  that  hi  such  a  case  the  judge  assumes  jurisdiction  to 
try  the  party  without  indictment,  information,  or  jury,  himself  the 
sole  judge  of  the  party's  guilt,  and  his  will,  sometimes  his  prejudice 
or  passion,  the  measure  of  punishment.  It  is  also  clear  that  such  a 
practice  might  be  so  extended  that  jury  trials  and  the  usual  formali- 
ties in  criminal  cases,  always  deemed  essential  to  the  preservation  of 
freedom,  might  be  entirely  eliminated,  especially  in  times  of  strife 
and  excitement,  and  each  judge  of  a  court  of  equitable  powers  become 
an  absolute  sovereign  within  his  domain. 

Much  needless  fear  is  exhibited  by  Mr.  Hines,  counsel  for  certain 
railroads,  because  of  the  alleged  difficulties  of  obtaining  the  names 
of  those  who  are  to  be  enjoined  and  of  procuring  service  upon  them 
where  a  railway  strike  occurs.  His  information  with  respect  to  the 
mode  of  living  of  railway  employees  and  their  residential  status 
appears  to  be  more  limited  than  that  of  the  average  citizen  having 
no  connection  with  railroad  business.  He  grossly  exaggerates  the 
difficulties  and  inconveniences  of  reaching  and  serving  those  whom 
it  is  found  or  thought  necessary  to  serve  in  case  of  the  issuance  of  an 
injunction  or  restraining  order.  The  facts,  as  any  railway  employee 
except,  perhaps,  Mr.  Hines,  knows  are  that  the  nature  of  the  employ- 
ment is  such  that  permanency  of  residence  is  absolutely  necessary  in 
the  case  of  any  employee  whose  employment  is  not  merely  temporary 
and  free  from  personal  responsibility.  Moreover,  there  can  never  be 
the  slightest  difficulty  in  getting  their  names  and  addresses.  It 
would  be  shown  by  the  pay  rolls.  Nor  is  there  anything  in  the  asser- 
tion that  the  operations  of  a  railway  strike  extend  over  an  extensive 
territory.  Such  is  seldom  the  case,  but  even  where  that  condition 
exists  the  inconveniences  of  getting  service  are  negligible.  With 
respect  to  such  acts  of  vandalism  as  damaging  engines  and  boilers 
and  separating  the  cards  attached  to  freight  cars,  no  injunction  could 
anticipate  them,  no  matter  how  completely  or  promptly  served. 

Section  266c  naturally  divides  itself  into  two  separate  and  dis- 
tinct propositions,  contained  in  two  paragraphs,  the  first  of  which 
reads  thus: 

SEC.  266c.  That  no  restraining  order  or  injunction  shall  be  granted  by  any  court  of 
the  United  States,  or  a  judge  or  judges  thereof,  in  any  case  between  an  employer  and 
employees,  or  between  employers  and  employee,  or  between  employees,  or  between 
persons  employed  and  persons  seeking  employment,  involving  or  growing  out  of  a 
dispute  concerning  terms  or  conditions  of  employment,  unless  necessary  to  prevent 
irreparable  injury  or  to  a  property  right  of  the  party  making  the  application,  for  which 
injury  there  is  no  adequate  remedy  at  law,  and  such  property  or  property  right  must 
be  described  with  particularity  in  the  application,  which  must  be  in  'writing  and 
sworn  to  by  the  applicant  or  by  his  agent  or  attorney. 


The  words  occurring  therein — ' '  between  an  employee  and  employers 
or  between  employers  and  employees,  or  between 'persons  employed 
and  persons  seeking  employment,  involving  or  growing  out  o:* 
pute  concerning  terms  or  conditions  of  employment" — we 


f  a  dis- 
were  con- 


PENDING  BILLS  FOB  REGULATING  INJUNCTIONS.  27 

stantly  called  to  the  attention  of  the  committee  by  counsel  in  oppo- 
sition as  a  feature  giving  the  bill  the  distinctive  stamp  *of  class 
legislation. 

vVere  it  not  for  the  discriminations  between  classes  in  exercising  the 
jurisdiction,  this  provision,  like  many  others  in  the  bill,  might  be 
stricken  out  without  great  public  detriment.  The  paragraph  would 
then  state  the  law  as  it  is  uniformly  administered  between  parties 
where  no  labor  dispute  is  involved.  In  many  cases  where  employers 
seek  injunctions  against  laborers  with  whom  they  have  a  dispute  the 
language  of  this  paragraph  is  turned  around  to  read  thus: 

That  restraining  orders  and  injunctions  may  be  freely  granted  by  the  cuorts  of  the 
United  States,  or  the  judges  thereof,  in  any  case  between  employers  and  employees, 
*  involving  or  growing  out  of  a  dispute  concerning  terms  or  conditions  of 
employment,  whether  necessary  or  not  to  prevent  irreparable  injury  to  property  or 
a  property  right,  the  party  making  the  application,  being  a  business  man,  whether 
or  not  the  party  has  an  adequate  remedy  at  law.  In  such  case  no  property  or  property 
right  need  be  particularly  described  or  even  mentioned  in  the  application. 

The  first  clause  of  this  paragraph  to  which  I  shall  direct  special 
attention  reads  thus: 

Unless  necessary  to  prevent  irreparable  injury  to  property  or  to  a  property  right  of 
the  party  making  the  application,  for  which  injury  there  is  no  adequate  remedy  at  law. 

I  will  call  attention  to  High  on  Injunctions,  fifth  and  latest  edition, 
section  20b,  which  is  a  new  section,  and  to  a  long  list  of  authorities 
therein  cited,  old  and  new.  He  says: 

Equity  has  no  jurisdiction  to  restrain  the  commission  of  crimes  or  to  enforce  moral 
obligations  and  the  pt.i'ormance  of  moral  duties,  nor  will  it  interfere  for  the  prevention 
of  an  illegal  act  merely  because  it  is  illegal;  and  in  the  absence  of  any  injury  to  property 
rights  it  will  not  lend  its  aid  by  injunction  to  restrain  the  violation  of  public  or  penal 
statutes  or  the  commission  of  immoral  and  illegal  acts. 

Speaking  of  the  remedy  by  injunction,  Pomeroy  says: 

It  is  necessary  to  show  irreparable  injury  to  a  substantial  property  right,  and  if  such 
injury  is  not  clearly  made  out,  relief  will  be  refused.  (Pomeroy  Eq.  Juris.,  vol.  5, 
sec.  323.) 

As  equity  deals  with  property  rights  alone,  an  injunction  will  not  issue  to  restrain 
political  acts  of  public  officers.  (Pomeroy  Eq.  Juris.,  vol.  5,  sec.  324.) 

Having  shown  by  these  authorities  that  equity  protects  property 
and  property  rights  only,  the  next  proposition  is  that  "Business  is  not 
property  or  a  property  right."  Authorities:  E.  &  A.  Encyclo.  L.,  p. 
59;  E.  &  A.  Encyclo.  L.,p.  251 ;  Bouvier's  L.  Diet.,  title  "Property'' ; 
Black's  L.  Diet.,  title  "Business";  Schuback  v.  McDonald,  65  L.  R. 
A.,  136;  Worthington  v.  Waring,  157  Mass.,  421. 

Legally  speaking,  what  is  property  ?  What  is  a  property  right  ?  I 
will  first  discuss  the  property  right.  It  is  a  right  essentially  connected 
with  property,  and  I  emphasize  these  words — entirely  dependent  upon 
the  ownership  legally  or  equitably  of  property.  Such  being  the 
essential  characteristic,  there  is  no  real  difference  between  property 
and  the  property  right.  Whoever  owns  the  right  owns  the  property, 
legally  or  equitably. 

In  the  English  and  American  Encyclopedia  of  Law,  at  page  59,  we 
find  this  definition  of  property: 

Property  means  that  dominion  of  indefinite  right  of  user  and  disposition  which  one 
may  lawfully  exercise  over  particular  things  or  subjects,  and  generally  to  the  exclu- 
sion of  all  others.  Property  is  ownership^,  the  exclusive  right  of  any  person  freely  to 
use  and  enjoy  and  dispose  of  any  determinate  object,  whether  real  or  personal. 


28  PENDING  BILLS  FOB  REGULATING  INJUNCTIONS. 

From  Bouvier's  Law  Dictionary  (latest  edition)  I  read  the  following 
definition  of  property: 

The  sole  and  despotic  dominion  which  one  man  claims  and  exercises  over  the 
external  things  of  the  world  in  total  exclusion  of  the  right  of  any  other  individual 
in  the  universe.  The  right  to  possess,  use,  enjoy,  and  dispose  of  a* thing. 

On  page  261  of  the  English  and  American  Encyclopedia  we  find 
this  definition  of  the  property  right: 

In  its  proper  use  the  term  "property  right"  applies  only  to  the  rights  of  the  owner 
in  the  things  possessed. 

Now,  let's  ascertain  how  business  is  defined  and  we  shall  see  that 
it  does  not  come  within  either  of  these  definitions. 
Black's  Law  Dictionary : 

*  *  *  A  matter  or  affair  that  engages  a  person's  attention  or  requires  his  care; 
an  affair  receiving  or  requiring  attention;  specifically,  that  which  busies  or  occupies 
one's  time,  attention,  and  labor  as  his  chief  concern;  that  which  one  does  for  a  live- 
lihood; occupation;  employment;  as  "his  business  was  that  of  a  merchant";  to  carry 
on  the  business  of  agriculture. 

That  which  is  undertaken  as  a  duty  or  of  chief  importance,  or  is  set  up  as  a  prin- 
cipal purpose  or  aim.  For  instance,  "the  business  of  my  life  is  now  to  pray  for  you." 
(Fletcher,  Loyal  Subject  IV,  1.) 

Black,  -Anderson,  Bouvier,  Century,  and  Webster,  all  the  lexi- 
cographers, agree  in  their  definitions  of  property  and  business. 

Business  is  of  innumerable  forms.  It  may  be  incident  to  the 
ownership  or  use  of  property  or  entirely  foreign  to  such  use  and 
ownership.  It  is  the  business  of  the  naturalist  to  travel  and  investi- 
gate. What  I  am  now  doing  and  what  the  members  of  this  com- 
mittee are  doing  is  business,  just  as  much  as  what  any  employer  of 
labor  is  doing  or  has  been  doing. 

All  of  any  employing  corporation's  property,  including  its  good  will, 
its  assets,  is  the  product  of  labor,  rart  of  that  labor  and  not  part 
of  that  property  is  the  doing  of  business. 

One  element  of  all  the  definitions  of  property  is  that  it  may  be 
disposed  of;  that  is  to  say,  it  is  assignable.  The  only  exception  is 
in  the  case  of  what  is  known  as  a  pure  equity.  One's  business  has 
no  quality  of  an  equity,  and  so  that  need  not  be  considered.  Hence, 
lacking  the  essential  element  of  assignability,  it  is  neither  property 
nor  a  property  right.  It  is  an  indeterminate  natural  and  personal 
right.  If  a  man  die,  all  his  property,  including  the  good  will,  if 
any,  created  by  exercising  the  rights  to  labor — that  is  to  say,  by 
exercising  the  rights  to  do  business — is  distributed  to  his  next  of  kin 
or  devisees.  But  his  business  ends.  It  is  gone  forever.  This  applies 
to  men  of  all  conditions  and  classes.  Within  the  legal  definitions 
there  is  hardly  a  man  in  the  world  without  a  business.  Even  if  a 
man  be  sick  and  bedridden,  he  has  as  his  chief  concern  to  get  well 
if  he  can. 

The  reasoning  in  boycott  cases  is  the  same  as  in  strike  cases.  For 
the  same  reasons  that  an  employer  has  no  vested  or  property  interest 
in  his  employees  or  ip  their  capacity  to  serve  him,  a  dealer  has  none 
in  his  customers. 

Now,  let  us  take  any  boycott  case  before  a  court  for  an  illustration 
of  my  argument.  Nobody  is  threatening  to  injure  the  plant  or  other 
real  property  of  plaintiff.  What  is  left  as  property  or  as  a  property 
right  to  support  the  action  for  an  injunction  ?  Merely  that  imaginary 
thmg — the  plaintiff's  business. 


PENDING  BILLS  FOE  REGULATING  INJUNCTIONS.  29 

Now,  I  undertake  to  demonstrate,  as  a  legal  proposition,  that  busi- 
ness is  a  mere  abstraction  and"  is  not  and  can  not  be  proved  or  argued 
into  the  legal  meaning  of  property  or  property  right  by  any  amount 
of  proof  or  argument. 

I  have  sought  in  the  opinions  of  judges  a  good  expression  of  my 
idea,  and  found  it  in  Schubach  v.  McDonald  (a  Missouri  case  reported 
in  65  L.  R.  A.,  p.  136),  where  the  court,  speaking  of  the  right  which 
can  be  made  the  oasis  for  an  injunction,  said : 

The  abstract  right  must  assume  a  concrete  form  before  it  became  property  in  the 
judicial  sense,  capable  of  judicial  protection. 

If  "business"  be  not  property,  much  less  is  the  abstract  right 
designated  as  "the  right  to  do  business."  The  right  to  do  business 
clearly  belongs  hi  the  class  of  personal  rights;  for  instance,  with  one's 
right  to  practice  law,  his  right  to  travel.  A  complainant's  business 
and  right  to  do  business  are  as  unsubstantial  and  purely  ideal  and 
personal  as  that  of  a  metal  polisher  or  foundryman  to  seek  and  obtain 
employment. 

As  the  question  of  judicial  interference  in  disputes  between  lab  or  and 
capital  has  never  been  discussed  in  any  of  the  cases  with  any  special 
reference  to  this  point,  and  as  judicial  views  as  well  as  the  decisions, 
are  in  conflict,  I  desire  to  illustrate  this  point,  and  I  will  begin  with  a 
truism  and  a  maxim.  My  truism  is  that  each  man  is  the  equal  of 
every  other  man  before  the  law.  My  maxim  is  that  "Equity  delight- 
eth  in  equality."  Now,  for  the  illustration.  Here  is  a  man;  we  will 
say  his  name  is  Smith.  He  enters  the  employ  (as  a  polisher)  of 
Mr.  Jones,  who  was  the  proprietor  30  years  ago  of  a  stove  factory. 
By  entering  such  employment  he  becomes  a  business  man  as  well  as 
an  employee.  He  is  engaged  in  a  business  pursuit.  He  is  not 
engaged  in  philanthropic  work,  but  business.  Polishing  stoves  is  his 
business.  In  other  words,  he  is  exercising  the  right  to  do  business. 
He  has  police  protection  against  personal  annoyance.  Would  anyone 
be  so  absurd  as  to  contend  that  he  could  protect  by  injunction  his  bare 
right  to  polish  stoves;  that  is,  his  right  to  accept  employment  and 
perform  the  duties  of  a  stove  polisher  ?  He  receives  his  compensation 
m  definite  stated  sums  at  stated  periods.  There  is  Mr.  Jones,  his 
employer.  He  stands  in  the  place  of  the  corporation,  subsequently 
succeeding  Mr.  Jones  in  business,  and  the  illustration  holds  good. 
Mr.  Jones  works  at  the  same  establishment,  but  mostly  with  his  brains. 
He  gets  his  pay  in  the  form  of  profits  when  there  are  any.  His  pay  is 
uncertain  and  somewhat  speculative  as  to  its  amount,  but  that  is 
whoUy  immaterial.  As  to  all  his  tangible  property,  real  and  personal, 
and  as  to  all  his  property  rights,  sucn  as  choses  in  action  and  incor- 
poreal hereditaments,  he  may  in  a  proper  case  be  protected  by  injunc- 
tion, but  not  as  to  his  personal  right  to  do  business. 

We  will  suppose  that  Mr.  Jones  dies  and  the  corporation  takes  his 
place  as  proprietor  and  takes  over  the  business.  It  of  course  suc- 
ceeds to  no  greater  personal  right  to  do  business  than  its  predecessor 
enjoyed  or  that  any  other  business  man  enjoys.  Mr.  Brown  becomes 
president  and  continues  devoting  labor  to  the  business.  He  is  as 
much  entitled  to  in  junction  to  protect  his  employment  as  Smith,  the 
polisher,  to  protect  his  job,  or  as  the  corporation  to  protect  its  busi- 
ness; that  is  to  say,  the  corporation  has  no  such  right. 

The  magnitude  of  the  corporation's  business  cuts  no  figure.  It  is 
in  no  better  position  than  a  match  peddler  in  this  respect. 


30  PENDING  BILLS  FOE   REGULATING  INJUNCTIONS. 

Suppose  now  that  Smith — that's  the  polisher,  the  employee — 
hears  that  the  corporation  intends  to  discharge  him  and  files  a  bill  to 
enjoin  it.  The  corporation's  managers  would  be  utterly  astounded, 
as  well  they  might  be.  And  yet  that  corporation  has  no  more  a 
vested  or  property  right  in  that  abstract  thing  called  business  than 
the  workingman  has  in  the  use  of  his  hands  and  faculties.  Now, 
urely  it  will  not  be  contended  that  the  courts  can  discriminate  in  this 
matter  or  that  any  chancellor  could  establish  what  we  term  discrimi- 
nating, or,  to  use  a  vulgar  phrase,  "jug-handled,"  equity. 

At  the  Fifty-ninth  Congress  the  question  of  good  will  and  the 
mooted  question  of  its  connection  with  the  right  to  do  business, 
again  brought  up  before  the  Senate  committee,  was  brought  up  and 
met  by  me,  I  think,  fully;  and  any  member  of  this  committee  will 
be  furnished  with  a  copy  of  my  argument  in  answer  to  Mr.  Daven- 
port on  that  subject.  At  the  close  of  the  Fifty-ninth  Congress  I 
presented  and  filed  a  reply  to  a  report  to  a  subcommittee  which 
brought  up  that  proposition,  and  I  went  into  it  still  more  elabo- 
rately. A  copy  of  that  can  be  obtained  by  any  member  of  this 
committee,  and  I  will  take  special  pains  to  see  that  any  member  of 
the  committee  that  wants  it  gets  a  copy.  The  opposition  to  the 
bill  have  seemed  to  acknowledge  their  error  in  confounding  good 
will  and  business  after  hearing  the  distinction  clearly  pointed  out, 
as  it  was  by  me,  both  at  the  hearing  in  the  fifty-ninth"  session  and  in 
my  reply  to  the  report  of  the  subcommittee  filed  at  the  same  session. 
At  any  rate,  they  nave  ceased  to  harp  on  it. 

Good  will  and  business  are  clearly  distinguishable.  It  often 
requires  some  legal  acumen  to  distinguish  between  things  which  are 
similar  and  yet  not  identical.  But  there  should  be  none  here.  Our 
conceptions  of  the  difference  between  good  will  and  business  ought 
to  be  clear. 

Permit  me  to  call  attention  to  a  fact  which  ought  alone  to  remove 
good  will  from  the  domain  of  discussion.  No  case  of  injunction 
growing  out  of  a  labor  dispute  can  be  found  in  which  the  good  will 
was  ever  referred  to,  and,  indeed,  it  is  impossible  to  conceive  of  an 
attack  being  directed  against  the  good  will  by  the  disputants  on 
either  side  of  such  a  controversy. 

Good  will  as  property  is  produced  in  the  same  way  that  any  other 
property  is  produced;  that  is,  by  labor,  by  exercising  the  right  to 
do  business. 

In  fact,  the  good  will  is  a  mere  fiction  as  property,  and  under  the 
modern  regime  of  trade-marks  and  trade  names  and  registry  laws  for 
these  the  good  will  never  alone  becomes  the  subject  of  litigation. 
The  trade  name  covers  the  good  will  and  is  practically  the  only  evi- 
dence of  its  existence.  There  can  not,  in  the  nature  of  the  case,  be  amr 
infringement  of  the  property  right  in  good  will  separate  and  distinct 
from  infringement  of  the  trade  name.  Infringement  can  only  consist 
in  duplication  or  simulation.  It  is  enjoined  because  it  is  a  fraud  upon 
the  public  as  well  as  upon  the  owner  of  the  trade  name.  An  infringe- 
ment is  never  involved  in  a  dispute  between  employers  and  employees 
nor  in  any  matter  involving,  relating  to,  or  growing  out  of  a  labor 
dispute. 

The  good  will,  after  its  creation,  through  the  exercise  of  the  right 
to  do  business,  being  property,  may  be  sold  or  inherited  after  the 
business  is  terminated.  For  illustration,  I  could  cite  the  case  of  a 


PENDING   BILLS  FOR  REGULATING  INJUNCTIONS.  31 

large  publishing  house  in  New  York  which,  after  a  long  and  successful 
career,  failed  in  business,  its  failure  having  resulted  mainly  from  dis- 
agreements with  its  employees;  but  the  most  valuable  asset  of  the 
insolvent  after  its  doors  were  closed  was  its  good  will,  and  that  was 
sold  to  a  new  companv  for  a  large  sum. 

In  Worthington  v.  Waring  (157  Mass.,  421)  we  have  a  case  whose 
principle  and  language  is  a  statement  in  a  slightly  different  form 
from  that  I  have  been  using.  The  facts  appear  in  the  part  of  the 
opinion  I  am  about  to  read: 

We  take  the  substance  of  the  petition  to  be  that  the  petitioners  were  weavers  by 
trade  and  had  been  employed  by  the  Narragansett  Mills,  a  corporation  in  Fall  River, 
and  that  they  demanded  higher  wages,  which  the  corporation  refused  to  give;  and  they 
then  left  work,  and  th'e  defendants  sent  their  names  to- the  officers  of  other  mills  in 
Fall  River,  on  a  list  which  is  called  a  "black  list,"  and  which  informed  these  officers 
that  the  petitioners  had  left  the  Narragansett  Mills  on  what  is  called  a  "strike"; 
whereupon  the  defendants  conspired  together  and  with  the  officers  of  other  mills,  and 
agreed  not  to  employ  the  petitioners,  with  intent  to  compel  them  either  to  go  without 
work  in  Fall  River  or  to  go  back  to  work  for  the  Narragansett  Mills  at  such  wages  as 
that  corporation  should  see  fit  to  pay  them.  It  does  not  appear  by  the  petition  that 
any  of  the  petitioners  had  existing  contracts  for  labor  with  which  the  defendants 
interfered.  If  the  petition  sets  forth  such  a  conspiracy  as  constitutes  a  misdemeanor 
at  common  law— on  which  we  express  no  opinion — the  remedy  is  by  indictment. 
If  the  injury  which  had  been  received  by  the  petitioners  at  the  time  the  petition  was 
filed  constitutes  a  cause  of  action — on  which  we  express  no  opinion — the  remedy  is 
by  an  action  of  tort,  to  be  brought  by  each  petitioner  separately. 

The  only  grievance  alleged,  which  is  continuing  in  its  nature,  is  the  conspiracy  not 
to  employ  the  petitioners,  and  there  are  no  approved  precedents  in  equity  for  enjoin- 
ing the  defendants  from  continuing  the  defendants  either  to  employ  the  petitioners 
or  to  procure  employment  for  them  with  other  persons.  (See  Workman  ?>.  Smith,  155 
Mass.,  92;  CarletonV  Rugg,  Mass.,  550,  5  L.  R.  A.,  193;  Smith  v.  Smith,  148  Mass., 
1;  Raymond  v.  Russell,  143  Mass.,  295,  58  Am.  Rep.,  137;  Boston  Diatite  Co.  v.  Flor- 
ence Mfg.  Co.,  114  Mass.,  69,  19  Am.  Rep.,  310.)  It  is  plain,  however,  that  the  peti- 
tion was  drawn  with  a  view  to  obtain  some  equitable  relief.  It  is  well  known  that 
equity  has,  in  general,  no  jurisdiction  to  restrain  the  commission  of  crime  or  to  assess 
damages  for  torts  already  committed.  Courts  of  equity  often  protect  property  from 
threatened  injury  when*  the  rights  of  property  are  equitable  or  when,  although  the 
rights  are  legal,  the  civil  and  criminal  remedies  at  common  law  are  not  adequate; 
but  the  rights  which  the  petitioners  allege  the  defendants  were  violating  at  the  tune 
the  petition  was  filed  are  personal  rights  as  distinguished  from  rights  of  property. 

Since  we  have  here  become  so  accustomed  to  the  use  of  the  word 
boycott,  I  beg  leave  to  submit  that  here  was  an  instance  of  a  boy- 
cott— one  of  the  most  vicious  and  reprehensible  imaginable — only 
it  was  called  a  black  list. 

In  the  Debs  case  it  was  not  held  that  a  court  could,  without  property 
right  as  a  basis,  enjoin  a  body  of  strikers.  On  the  contrary,  it  was 
clearly  recognized  that  a  basis  of  property  right  was  essential.  In 
that  case  (158  U.  S.  P.,  583)  the  court  said: 

It  is  said  that  equity  only  interferes  for  the  protection  of  property  and  that  the  Gov- 
ernment has  no  property  interest.  A  sufficient  reply  is  that  the  United  States  have 
a  property  in  the  mails, 'the  protection  of  which  was  one  of  the  purposes  of  this  bill. 

And  the  court  proceeds  to  discuss  such  property  in  the  mails,  citing 
cases. 

All  such  cases  as  the  Debs  case,  all  obstructions  of  railway  trans- 
portation, can  be  enjoined  by  the  Government  if  this  bill  should  pass 
as  before.  (See  Debs  case,  158  U.  S.,  587,  and  cases  cited.)  In- 
junctions will  issue  in  such  cases  as  heretofore,  not  only  to  protect 
property,  but  because  such  obstructions  constitute  public  nuisances. 


32  PENDING  BILLS   FOE   REGULATING  INJUNCTIONS. 

In  the  memorandum  of  authorities  placed  in  the  record  by  Mr. 
Hines  we  find  an  extract  from  section  20  of  High  on  Injunctions, 
reading  thus: 

The  subject  matter  of  the  jurisdiction  of  equity  being  the  protection  of  private 
property  and  of  civil  rights,  courts  of  equity  will  not  interfere  for  the  punishment  or 
prevention  of  merely  criminal  or  immoral  acts  unconnected  with  violations  of  private 
rights. 

This  was  produced  to  give  a  color  of  justification  to  the  use  of 
injunctions  in  labor  disputes  for  the  assertion  and  enforcement  of  such 
personal  rights  as  that  of  doing  or  continuing  business,  inasmuch  as 
they  belong  to  the  class  designated  "civil  rights."  But  if  the  whole 
of  that  section  20  were  inserted  it  would  clearly  appear  from  the 
context  that  the  purpose  of  using  the  words  "civil  rights"  was  to 
exclude  from  the  category  of  acts  which  might  be  enjoined  those 
rights  which  are  infringed  by  criminal  violations  of  the  law.  This  is 
also  shown  by  section  20b  of  the  same  authority,  as  before  quoted 
by  me. 

It  has  been  often  remarked  that  liars  should  have  good  memories. 
This  does  not,  of  course,  refer  to  the  counsel  in  opposition  to  the  bill, 
because  from  the  nature  of  their  employment  they  must  be  regarded 
and  treated  as  eminently  respectable  members  of  the  bar.  But  they 
appear  unable  to  avoid  occasional  lapses  of  memory  in  recitals  of 
then'  respective  parts  in  the  farce  of  killing  time  before  committees 
and  during  those  lapses  inadvertently  admit  the  fundamental  limi- 
tation of  equitable  jurisdiction  to  property  rights.  As  instances  in 
point,  I  quote  the  following: 

Mr.  MONAGHAN  (p.  87).  Under  and  by  virtue  of  the  Constitution  of  the  United 
States  no  citizen  can  be  deprived  of  life,  liberty,  or  properly  without  due  process  of 


of  a  restraining  order  to  the  end  that  his  property  may  be  preserved.  The  denial  of 
this  right  is  a  denial  of  due  process  of  law. 

Mr.  DAVENPORT  (pp.  22,  23,  pt.  3).  Under  the  decision  of  the  United  States  in  this 
Adair  case,  and  supported  by  a  very  large  number  of  decisions  everywhere,  those 
things  that  in  the  Pearre  bill  were  sought  to  be  declared  not  to  be  property  rights 
are  property  rights,  and  would  be  covered  by  the  first  clause  of  this  bill.  But  the 
bill  goes  on,  then, "to  say  that  a  certain  class  of  acts  attacking  your  property  shall 
not  be  enjoined  against,  and  this  is  the  way  it  reads. 

Senator  SUTHERLAND.  May  I  interrupt  you  again?  I  had  understood — I  do  not 
know  where  I  saw  it  or  where  I  heard  it — that  it  had  been  claimed  that  the  provision 
in  this  bill  now  pending,  with  reference  to  property  rights,  would  not  include  the 
right  to  do  business.  I  wondered  what  the  foundation  of  that  was. 

Mr.  DAVENPORT.  In  construing  this  bill  I  suppose  the  courts  would  say  that  what  the 
courts  have  said  time  out  of  mind  are  property  rights  would  be  covered  by  that  first 
section,  and  that  when  it  says  that  unless  to  prevent  irreparable  injury  to  property 
or  to  a  property  right  whatever  fell  within  that  definition  of  property  would  be  cov- 
ered by  the  terms. 

Senator  ROOT.  You  dp  not  find  anything  in  this  language,  do  you,  which  under- 
takes to  change  the  law  in  that  respect? 

Mr.  DAVENPORT.  Not  in  that  respect. 

Mr.  HINES  (pp.  30,  31).  Limitation  to  property  rights  seem  designed  to  exclude 
remedies  to  protect  the  person  and  to  protect  personal  freedom,  although  those  rem- 
edies are  particularly  necessary  in  labor  disputes. 

The  limitations  absolutely  to  property  or  to  property  rights  seems  to  narrow,  at 
least  somewhat,  the  basis  for  equitable  intervention.  Pomeroy,  in  the  sixth  volume 
of  his  work  on  equity,  page  579,  seems  to  recognize  that  equity  will  intervene  to 
protect  the  right  of  personal  freedom  of  a  man  to  come  to  and  from  his  work  and  puts 
the  intervention  on  the  ground  of  protecting  that  element  of  personal  freedom.  We 
find  in  other  cases  the  general  statement  that  while  equity  jurisdiction  will  not  be 


PENDING  BILLS  FOE   REGULATING   INJUNCTIONS.  33 

exercised  for  the  enforcement  of  criminal  law,  yet  it  may  be  exercised  for  the  pro- 
tection of  civil  rights.  It  is  true  generally,  and  perhaps  it  is  particularly  true  in 
the  case  of  a  railway  company,  that  it  will  always  be  possible  to  demonstrate  the 
existence  of  a  property  right;  but  nevertheless,  if  the  general  doctrine  of  equitable 
intervention  is  somewhat  broader  than  that,  it  seems  particularly  unwise  to  put 
this  limitation  here,  where  undoubtedly  one  of  the  things  which  is  most  infringed  is 
the  right  of  personal  liberty. 

The  CHAIRMAN.  Would  that  term  include  the  mere  right  to  do  business;  for  exam- 
ple, where  a  man  "has  a  stock  of  goods,  the  goods  themselves  not  being  interfered 
with?  Could  you  say  that  the  right  of  that  man  to  continue  his  business  and  dispose 
of  his  goods  was  a  property  right? 

Mr.  HINES.  I  should  say  it  would  be  an  open  question  in  the  construction  of  this 
section.  Undoubtedly  he  has  a  right  equity  ought  to  protect,  and  this  section  would 
seem  to  make  it  a  question  whether  it  is  such  a  right  that  equity  would  protect  in  the 
labor  disputes.  The  point  I  urge  is,  in  view  of  the  doubt  that  is  cast  upon  the  extent 
of  the  foundation  of  equitable  interference  in  these  cases,  that  the  provision  ought  to 
be  omitted,  because  if  there  is  any  class  of  cases  where  equity  ever  goes  beyond  these 
bare  property  rights,  certainly  this  is  the  class  of  cases  where  it  ought  to  do  that  thing, 
because  the  things  that  are 'involved  here  are  so  largely  matters  of  liberty  and  so 


largely  matters  of  protection  of  the  persons  of  individuals  who  ought  to  be  regarded  as 
entitled  to  equitable  protection  when  no  other  remedy  is  available. 

Mr.  DILLARD  (pp.  8  and  9,  pt.  3).  I  trust  it  will  not  be  extended;  I  hope  it  will  not 
be.  I  desire  to  call  attention  to  the  fact,  however,  in  passing,  and  in  doing  so  to  say 
this:  The  purpose  of  the  injunction  sought  is,  we  will  say,  for  the  preservation  of 
property.  This  being  true,  if  it  appears  to  the  judge  by  a  preponderance  of  the  evi- 
dence that  irreparable  injury  is  likely  to  result,  that  property  is  likely  to  be  destroyed, 
then  it  would  seem  to  me  sufficient  foundation  has  been  laid  for  the  issuance  of  the 
injunction. 

Senator  0' GORMAN.  I  have  always  understood  that  to  be  the  accepted  rule  in  all 
jurisdictions,  and  the  case  you  speak  of  seems  to  be  the  exception. 

Mr.  DILLARD.  I  am  sure  the  rule  as  I  stated  it  has  been  held  in  several  jurisdictions. 

Counsel  in  opposition  are  utterly  destitute  of  English  authority  for 
their  extraordinary,  contention  that  injunction  can  properly  issue  to 
protect  the  mere  right  to  do  business  and  other  personal  rights. 
There  are  none,  and  consequently  none  are  produced.  But  in  an 
effort  to  make  plausible  an  objection  against  a  point  of  practice 
covered  by  a  provision  in  the  bill  they  bring  forward  two  decisions 
of  the  Supreme  Court  establishing  one  of  the  most  important  propo- 
sitions for  which  labor  has  ever  contended,  namely,  that  nothing  has 
been  added  to  the  jurisdiction  in  equity  since  the  adoption  of  the 
Constitution. 

Mr.  Monaghan  quoted  from  Pennsylvania  v.  Wheeling  Bridge  Co. 
(13  Hows.,  563)  as  follows: 

In  exercising  this  jurisdiction  the  courts  of  the  Union  are  not  Umited  by  the  chan- 
cery system  adopted  by  any  State,  and  they  exercise  their  functions  in  a  State  where 
no  court  of  chancery  has  been  established.  The  usages  of  the  high  court  of  chancery 
in  England,  whenever  the  jurisdiction  is  exercised,  govern  the  proceedings.  This 
may  be  said  to  be  the  common  law  of  chancery,  and  since  the  organization  of  the 
Government  it  has  been  observed. 

Mr.  Herrod  quotes  the  same  doctrine  from  the  Debs  case  (158 
U.  S.,  564)  and  cites  Mississippi,  Mills  v.  Cohn  (150  U.  S.,  202). 

ERRONEOUS  DECISIONS  HAVE  ORIGINATED  BY  LOSING  SIGHT  OF  FUNDA- 
MENTAL  PRINCIPLES. 

I  cite:  Kidd  v.  Horry,  28  Fed.  K.,  774;  Arthur  v.  Oakcs,  63  Fed.  R., 
310;  Nat.  Protect.  Assn.  v.  Cumming,  170  N.  Y.,  315;  58  L.  R.  A., 
135. 

It  will  be  found  upon  close  scrutiny  of  the  cases  that  in  many  of 
the  State  cases  where  injunctions  were  issued  in  labor  cases  the  juris- 
57039"— 12 3 


34  PENDING   BILLS   FOB   REGULATING   IN  JT  NOTIONS. 

diction  was  acquired  under  statutes  expressly  conferring  the  juris- 
diction and  that  they  found  sanction  in  the  decisions  of  the  English 
courts,  which  was  likewise  conferred  by  statute.  And  the  Federal 
judges  in,  I  dare  say,  the  most  of  the  cases  overlooked  this  fact  and 
based  their  decisions  on  precedents  which,  if  they  had  been  closely 
scrutinized,  would  have  been  found  not  authoritative. 

Attention  is  also  called  to  this  by  Mr.  Justice  Bradley,  presiding  at 
circuit  in  Kidd  v.  Horry  (28  Fed.  R.,  774). 

The  English  statute,  after  which  some  of  the  State  statutes  are 
patterned,  reads  in  part  as  follows: 

In  all  breaches  of  contract  or  other  injury,  where  the  party  injured  is  entitled  to 
maintain  and  has  brought  an  action,  he  may  claim  a  writ  of  injunction  against  the 
repetition  or  continuance  of  such  breach  of  contract  or  injury,  etc. 

In  part,  Justice  Bradley  said  in  Kidd  v.  Horry: 

As  the  high  court  of  justice  established  by  the  judicature  act  of  1873  was  an  amal- 
gamation of  all  the  courts  of  original  jurisdiction  of  Westminster  Hall,  including  the 
court  of  chancery,  which  became  merely  one  of  the  divisions  of  the  high  court,  it  fol- 
lows that  the  court  of  chancery  became  invested  with  the  jurisdiction  which  was 
given  to  the  common-law  courts  by  the  common-law  procedure  act  of  1854,  and  hence 
became  invested  with  the  power  to  grant  injunctions  to  prevent  the  continuance  or 
repetition  of  an  injury  which  was  actionable  in  any  court,  and  for  which  an  action 
was  brought,  although  the  power  to  grant  injunction  in  cases  of  libel  was  resisted,  in 
several  instances,  by  very  nigh  authority;  as  in  the  case  of  Prudential  Assur.  Co. 
v.  Knott  (10  Ch.  App.,  142),  by  Lord  Chancellor  Cairns  and  Lord  Justice  James,  and 
in  that  of  Bcddow  v.  Beddow"(9  Ch.  Div.,  89),  by  Sir  George  Jessel.  The  practice 
of  issuing  such  injunctions,  howeyer,  finally  prevailed. 

This  statute  law  of  Great  Britain  is  sufficient  to  account  for  the  English  cases  relied 
on  by  the  complainant,  and  is  undoubtedly  the  basis  on  which  they  really  stand. 

The  error  in  the  first  of  these  decisions  occurred  in  the  same  way 
that  most  erroneous  decisions  are  given;  that  is,  by  overlooking  fun- 
damental principle  and  failing  to  reexamine  the  ancient  and  well- 
established  boundaries  of  the  jurisdiction.  If  we  go  back  to  the 
period  of  the  struggle  between  the  law  and  chancery  courts,  we  find 
the  limitation  of  equity  in  injunction  cases  to  property  and  property 
rights  often  referred  to  and  discussed. 

Subsequently  it  was  so  well  understood  that  it  was  deemed  neces- 
sary to  only  occasionally  refer  to  it.  Bulwarks  of  erroneous  deci- 
sions have  been  erected  on  other  subjects,  to  be  subsequently  demol- 
ished. Some  isolated  erroneous  decision  was  tamely  and  blindly 
followed  as  a  precedent,  without  investigation  as  to  whether  it  was 
sustained  by  principle  or  not,  the  supposed  exigency  or  hardship  of 
a  case  before  the  court  being  elaborated  and  the  'precedent  being 
accepted  as  binding,  or  if  not  binding,  at  least  strongly  persuasive. 

Next  we  have  the  requirement  added  to  the  foregoing  provision 
that  the  restraining  order  or  injunction  shall  not  be  granted  unless 
the  property  or  property  right  be  described  in  the  complaint  or  appli- 
cation "with  particularity."  Much  error  and  abuse  in  labor  cases 
are  due  to  defects  and  shortcomings  of  complaints  upon  which  re- 
straining orders  and  injunctions  are  granted  at  the  outset.  I  deduce 
three  causes,  any  one  of  which,  or  all  together,  may  operate  to  bring 
about  the  miscarriage  of  justice  seen  in  each  instance.  These  are, 
first,  an  insufficient  complaint;  second,  a  mistaken  view  of  duty 
as  a  matter  of  law;  third,  an  unfortunate  environment  preventing  a 
comprehensive  view  of  the  rights  of  citizenship,  or  a  false  conception 
of  the  relation  between  capital  and  labor.  But  I  discuss  now  only  the 
insufficiency  of  complaints. 


PENDING  BILLS   FOE   EEGULATING  INJUNCTIONS.  35 

I  may  safely  assert,  as  a  general  proposition  to  which,  if  there  be 
an  exception,  I  have  not  seen  it,  that  on  two  essential  facts  in  all  the 
cases  the  complaints  are  insufficiently  specific  to  warrant  the  grant- 
ing of  the  relief  prayed.  The  complaints  do  not  show  (1)  specifically 
that  any  property  or  property  right  is  menaced  with  injury,  or  (2) 
in  what  way  or  by  what  means  an  irreparable  injury  would  result  if 
the  alleged  threatened  act  were  done. 

INSUFFICIENT   DESCRIPTION    OF   PROPERTY   RIGHT. 

I  need  not  here  make  any  such  point  as  that  the  right  to  carry  on 
business  is  not  property.  For  present  purposes — that  is  to  say,  in  this 
immediate  connection — that  is  waived.  But  I  make  the  point  that 
the  allegations  in  the  complaints  with  reference  to  property  and 
property  rights  are  insufficiently  specific. 

In  Hitchman  Coal  &  Coke  Co.  v.  Mitchell  (172  Fed.  Rep.,  963),  in 
which  one  of  the  restraining  orders  already  noticed  was  granted  by 
Judge  Dayton,  taking  that  as  fairly  representative,  the  complaint 
recited  that  the  complainant  owned  valuable  coal  mines,  mining 
machinery,  etc.,  that  it  had  large  capital  invested,  that  its  operations 
were  extensive  and  its  sales  large.  Figures  of  aggregates  were  given 
in  connection  with  some  of  the  recitals  and  there  was  a  general  asser- 
tion of  damages.  No  interruption  of  its  operations  was  alleged  up 
to  the  date  of  fifing  the  complaint,  nor  any  shown  to  be  imminent. 
Whether,  therefore,  any  property  or  property  right  was  involved  at 
all  in  what  the  defendants  were  alleged  to  be  doing  was  left  to  infer- 
ence and  conjecture. 

DEFECTIVE    ALLEGATIONS   OF   IRREPARABLE    INTURY. 

But  the  complaint  fell  stiU  further  short  of  the  legal  requirement 
that  irreparable  injury  must  be  specifically  alleged.  Nothing  is 
better  understood,  as  the  authorities  used  in  the  report  from  the 
House  committee  show,  than  that  a  mere  general  allegation  ot  irre- 
parable injury  is  not  sufficient.  And  yet  that  is  all  that  the  com- 
plaint in  trie  Hitchman  case  contained. 

The  complaint  asserted,  as  also  in  the  case  of  Adams  v.  Typothetae 
of  America,  brought  in  the  District  of  Columbia,  that  the  strikers 
were  under  contract,  which,  by  striking,  they  were  violating;  but  it 
will  be  borne  in  mind  that  a  long  line  of  decisions,  among  which 
is  Arthur  v.  Oakes,  has  settled  the  rule  that  courts  have  no  power  to 
forbid  men  to  strike  merely  because  of  their  being  under  contract 
to  serve  for  a  term  which  has  not  expired,  and  any  other  rule  would 
violate  the  constitutional  amendment  against  slavery  and  involun- 
tary servitude. 

And  there  is  another  reason  recognized  in  all  other  cases,  but  too 
often  ignored  in  strike  cases,  namely,  that  a  violated  contract  is 
compensable  and  hence  reparable  in  damages.  But  there  is  ordi- 
narily, in  fact,  no  damage  or  injury  whatever  in  strike  cases,  because 
the  injury  actually  suffered  is  such  as  was  designated  in  National 
Fireproofing  Co.  v.  Mason  Builders'  Association  and  other  cases,  as 
damnum  absque  injuria;  that  is  to  say,  injury-  suffered  by  a  party  by 
action  of  another  in  the  exercise  of  a  lawful  right. 

The  complaint  in  the  Hitchman  case,  like  those  in  many  others 
examined  by  me,  was,  notwithstanding  its  glaring  defects,  exceed- 


36  PENDING   BILLS   FOE   EEGULATING   INJUNCTIONS. 

ingly  verbos^  and  voluminous,  as  if  to  make  up  in  quantity  what  it 
lacked  in  quality.  But  it  and  the  others  contained  the  defects  above 
noted  and  others  as  well. 

To  take  up  even  one  of  these  cases,  analyze  the  pleadings,  and  apply 
the  law  to  the  many  and  complicated  facts,  and  then  present  the 
arguments  necessary  to  overthrow  the  fallacies  of  counsel  and  subtle 
errors  which  have  crept  into  the  decision  of  the  court,  would  bs  a 
serious  and  stupendous  undertaking.  The  fact  is  not  to  be  over- 
looked that  the  wealth  of  the  complainants  hi  these  cases  enable  them 
to  employ  the  ablest  counsel,  to  produce  witnesses  without  limit,  and 
to  make  extensive  preparation  precedent  to  sending  out  the  thunder- 
bolt in  injunctive  form;  also  that  strikers  have  not  the  advantages 
and  facilities  just  mentioned  at  hand  to  meet  such  a  situation.  There 
is  always  present  the  most  important  fact  of  all — that  whether  an 
injunction  be  issued  rightfully  or  wrongfully,  it  usually  does  its  fatal 
work,  paralyzes  the  defendants,  and  ties  the  hands  of  their  leaders, 
before  even  such  presentation  as  they  could  make  is  heard. 

Hence  the  importance  of  the  establishment  of  correct  rales  to 
govern  the  courts,  the  same  to  be  in  force  before  the  injunction  or 
restraining  order  issues;  hence  also  the  importance  and  justification  of 
the  prohibitions  contained  hi  the  second  clause  of  section  266c. 

IMPORTING  A  NEW  ELEMENT  INTO  STRIKE   CASES. 

Of  recent  years  counsel  for  employing  corporations  became  con- 
scious that,  without  the  importation  of  a  new  theory  or  doctrine  into 
the  law,  most  of  the  applications  for  injunctions  in  strike  cases  must 
be  denied,  upon  well  settled  principles.  Hence  they  imported  the 
element  of  motive,  and  made  a  distinction  founded  upon  the  purpose 
or  incentives  with  which  a  strike  was  instituted.  They  undertook  to 
analyze  the  feelings  at  work  in  the  bosoms  of  the  strikers. 

It  must  be  apparent  to  ah1  fair-minded  and  thoughtful  members 
of  the  legal  profession  that  where  the  thing  done  is  itself  lawful  the 
motive  with  which  it  is  done  or  undertaken  is  unimportant,  and  that 
to  allow  courts  of  equity  to  sit  in  judgment  upon  the  question  of 
mental  attitude  in  such  cases  is  to  completely  unsettle  all  the  law 
governing  them  and  set  up  the  chancellor  in  the  midst  of  the  labor 
organization  at  the  inception  of  a  strike  as  an  arbiter  of  their  con- 
duct as  well  as  a  controller  of  their  fates.  It  is  not  difficult  to  foresee 
the  utter  disruption  and  dispersion  of  labor  organizations  and  com- 
plete failure  of  ail  efforts  of  workingmen,  through  organization  and 
association,  to  improve  conditions  if  the  attitude  toward  them  thus 
assumed  by  the  courts  be  maintained  and  no  relief  he  afforded  by 
legislation.  It  is  exceedingly  difficult  to  see  or  even  to  admit  any 
consistency  or  possibility  of  a  reconciliation  between  the  -views  of 
those  who  stand  for  such  a  doctrine  and  their  professions  of  a  belief 
in  the  right  of  wage  earners  to  freely  assemble,  to  discuss  without 
restraint  those  business  and  social  matters  which  vitally  concern 
them,  to  form  and  maintain  an  organization ;  in  short,  to  exercise  in 
a  collective  or  organized  capacity  any  rights  except  such  as  are 
purely  academic  and  consistent  with  subjection  to  ^uch  industrial 
conditions  as  employers  choose  to  impose  upon  them,  however 
tyrannical,  miserable,  and  inhumane. 


PENDING  BILLS  FOB  REGULATING  INJUNCTIONS.  37 

If  the  Federal  judges,  sometimes  overawed  by  the  presence  before 
them  as  litigants  of  financial  magnates  and  powerful  interests,  and 
often  unduly  impressed  with  the  importance  of  large  property  in- 
terests and  the  promotion  of  commercial  prosperity  as  against  the 
lesser  interests  of  labor,  are  to  pass  upon  the  motives  or  moral  in- 
centives instigating  labor's  side  in  a  labor  dispute,  then  every  word 
and  act  at  their  assemblages  and  meetings  are  proper  subjects  for 
investigation  and  scrutiny,  such,  and  only  such,  allowance  to  be 
made  for  human  frailty,  excitement,  passion,  and  bias  of  self-inter- 
est as  the  judge  sees  fit  to  make.  Under  such  a  dispensation  what 
becomes  of  the  constitutional  guaranty  of  free  assemblage,  freedom 
of  movement,  and  free  speech  ?  What  becomes  of  the  prohibition 
against  involuntary  servitude  embodied  in  the  thirteenth  amend- 
ment, so  eloquently  expounded  in  Robinson  v.  Baldwin  (165  U.  S., 
292),  and  more  recently  in  Arthur  v.  Oakes  (63  Fed.  R.,  310)  ? 

Could  any  more  complete  and  despotic  one-man  power  over  or- 
ganized labor  be  conceivable  than  will  result  if  this  new  absolutism 
be  not  stayed  ?  It  was  first  evolved  and  enforced  by  Judge  Taft  in 
Mopres  v.  Bricklayers'  Union  (10  Ohio  Dec.,  165;  23  Ohio  L.  J.,  48), 
while  he  served  as  a  judge  of  the  superior  court  at  Cincinnati,  and 
was  followed  up  in  similar  cases  decided  by  him  while  on  the  Federal 
bench. 

The  language  of  Judge  Xoyes  in  National  Fireproofing  Co.  v.  Mason 
Bricklayers'  Association  (145  Fed.  R.,  260)  is  the  mildest  and  most 
reasonable  statement  of  that  false  doctrine  that  we  have  found.  And 
yet  it  is  not  difficult  to  see  that  if  the  question  of  whether,  in  deciding 
to  strike,  the  men  are  influenced  by  good  or  bad  motives,  is  to  be 
judicially  injected  into  a  case,  it  means  the  trial  in  each  instance  of 
an  issue  of  reasonableness  or  unreasonableness  of  their  demands  upon 
the  employer  and  gives  the  court  an  almost  unlimited  discretion. 
Especially  is  this  so  since  there  is  no  jury  trial  in  such  cases,  they 
being  treated  as  of  purely  equitable  cognizance. 

Another  and  more  recent  application  of  this  device  for  dealing  with 
strikers  is  found  in  Paine  Lumber  Co.  v.  Xeal,  in  which  an  injunction 
was  issued  in  the  southern  district  of  Xew  York  in  October,  1911,  but 
not  yet  reported.  But  there  have  been  many  such  subsequently  to 
Moores  v.  Bricklayers'  Union.  I  can  not  discuss  them  with  any 
attention  to  details,  although  some  account  of  them  can  be  found  in 
the  hearings  before  the  House  Judiciary  Committee,  especially  those 
the  Fifty-ninth  and  the  present  Congresses. 

It  is  well,  however,  to  state  and  to  show  that  the  new  element  above 
discussed  has  not  been  admitted  into  such  cases  without  differences 
among  the  judiciary  and  a  consequent  conflict  of  authority.  While 
the  tendency  to  accept  it  as  settled  law  is  clearly  eA'inced  in  a  few  Fed- 
eral decisions,  a  respectable  number,  if  not  a  majority,  of  the  State 
courts  of  last  resort  which  have  spoken  have  rejected  it. 

Xow,  let  us  carry  along  in  adverting  to  a  few  State  cases  what 
Justice  Bradley  said  in  Kidd  v.  Horry,  already  cited,  and  remember 
that  if  I  have  a  legal  right  to  do  an  act  my  motives  are  absolutely 
immaterial. 

In  McCawley  Bros.  v.  Tierney  (19  R.  I.,  255)  the  court  said: 

To  maintain  a  bill  on  the  ground  of  conspiracy,  it  is  necessary  that  it  should  appear 
that  the  object  relied  on  as  the  basis  of  the  conspiracy  or  the  means  used  in  accom- 
plishing it  were  unlawful.  What  a  person  may  lawfully  do  a  number  of  persons  may 


38  PENDING   BILLS   FOR   EEGULATING  INJUNCTIONS. 

unite  with  him  in  doing  without  rendering  themselves  liable  to  the  charge  of  con- 
spiracy, provided  the  means  employed  be  not  unlawful. 

In  Clemmitt  v.  Watson  (14  _lnd.  App.,  38)  the  court,  in  passing 
upon  the  conduct  of  the  defendants  in  a  strike  case,  said: 

What  each  one  could  rightfully  do,  certainly  all  could  do  if  they  so  desired,  espe- 
cially when  their  concerted  action  was  taken  peaceably,  without  any  threats,  violence, 
or  attempt  at  intimidation. 

Chief  Justice  Parker,  speaking  for  the  court  of  appeals  in  National 
Protective  Association  v.  Gumming  (170  N.  Y.,  315),  said: 

Whatever  one  man  may  do  alone  he  may  do  in  combination  with  others,  provided 
they  have  no  unlawful  object  in  view.  Mere  numbers  do  not  ordinarily  affect  the 
quality  of  an  act. 

In  Vegelahn  v.  Guntner  (167  Mass.,  92)  Justice  Holmes,  now  of  the 
Supreme  Court,  but  then  a  member  of  the  Supreme  Judicial  Court  of 
Massachusetts,  hi  a  dissenting  opinion,  said: 

But  there  is  a  notion,  which  lately  has  been  insisted  upon  a  good  deal,  that  a  com- 
bination of  persons  to  do  what  any  one  of  them  lawfully  might  do  by  himself  will 
make  the  otherwise  lawful  conduct  unlawful.  It  would  be  rash  to  say  that  some  as 
yet  unformulated  truth  may  not  be  hidden  under  this  proposition.  But  in  the  general 
form  in  which  it  has  been  presented  and  accepted  by  many  courts  I  think  it  plainly 
untrue,  both  on  authority  and  on  principle. 

In  Lindsay  &  Co.  v.  Montana  Federation  of  Labor  (37  Mont.,  273) 
the  Supreme  Court  of  Nebraska  said: 

But  there  can  be  found  running  through  our  legal  literature  many  remarkable 
statements  that  an  act  perfectly  lawful  when  done  by  one  person  becomes,  by  some 
sort  of  legerdemain,  criminal  when  done  by  two  or  more  persons  acting  in  concert, 
and  this  upon  the  theory  that  the  concerted  action  amounts  to  a  conspiracy:  but 
with  this  doctrine  we  do  not  agree.  If  an  individual  is  clothed  with  a  right  when  act- 
ing alone,  he  does  not  lose  such  right  meiely  by  acting  with  others,  each  of  whom 
ia  clothed  with  the  same  right.  If  the  act  done  is  lawful,  the  combination  of  several 
persons  to  commit  it  does  not  render  it  unlawful.  In  other  words,  the  mere  combi- 
nation of  action  is  not  an  element  which  gives  character  to  the  act. 

A  review  of  judicial  history  bearing  on  the  question  immediately 
under  consideration  discloses  that  this  modern  doctrine  of  the  Federal 
courts  and  some  of  the  State  courts  is  a  resurrection,  to  meet  the  sup- 
posed necessities  of  particular  cases,  of  an  ancient  English  decision 
holding  that  the  preconcerted  refusal  of  certain  workingmen  to  con- 
tinue their  employment,  even  though  an  advance  of  wages  was  their 
object,  constituted  a  criminal  conspiracy,  which  was  an  indictable 
offense  at  common  law,  although  the  same  act  done  by  only  one  indi- 
vidual would  not  have  been  unlawful.  (See  Rex  v.  Journeymen  Tai- 
lors, 8  Mod.,  11.)  Of  course  the  case  just  cited  is  not  the  only  case 
of  that  and  the  immediately  ensuing  period  holding  to  that  view;  but 
a  further  investigation  discloses  that  most  or  all  of  them  were  con- 
trolled by  drastic  and  harsh  statutory  enactments  of  that  period. 
Judge  Parker  called  attention  to  this  and  to  probable  neglect  of  the 
courts  to  note  the  statutory  origin  of  these  early  English  decisions  in 
the  case  decided  by  him  as  before  cited. 

The  next  clause  requires  that  ''the  application  must  be  in  writing 
and  sworn  to  by  the  applicant  or  by  his  agent  or  attorney."  Many 
allegations  in  complaints  and  affidavits  filed  in  labor  cases  are  made 
upon  information  or  belief,  which  is  a  vi  >lati  >n  of  well-settled  rules 
of  pleading.  No  provision  in  this  bill  is  aimed  at  that  reprehensible 
practice.  It  was  probably  thought  that  none  was  needed  because 
defendants  may  always  make  that  defect  a  ground  for  objection. 


PENDING  BILLS  FOR   REGULATING  INJUNCTIONS.  39 

The  defect  can  be  seen  in  bills  of  complaints  placed  in  the  hearings 
by  counsel  in  opposition  at  the  present  session. 

The  second  paragraph  of  section  266c  reads  as  follows: 

And  no  such  restraining  order  or  injunction  shall  prohibit  any  person  or  persons 
from  terminating  any  relation  of  employment  or  from  ceasing  to  perform  any  work 
or  labor,  or  from  recommending,  advising,  or  persuading  others  by  peaceful  means 
so  to  do;  or  from  attending  at  or  near  a  house  or  place  where  any  person  resides  or 
works,  or  carries  on  business,  or  happens  to  be  for  the  purpose  of  peacefully  obtain- 
ing or  communicating  information,  or  of  peacefully  persuading  any  person  to  work 
or  to  abstain  from  working;  or  from  ceasing  to  patronize  or  to  employ  any  party  to 
such  dispute;  or  from  recommending,  advising,  or  persuading  others  by  peaceful 
means  so  to  do;  or  from  paying  or  giving  to  or  withholding  from  any  person  engaged 
in  such  dispute  any  strike  benefits  or  other  moneys  or  things  of  value;  or  from  peace- 
ably assembling  at  any  place  in  a  lawful  manner  and  for  lawful  purposes;  or  from 
doing  any  act  or  thing  which  might  lawfully  be  done  in  the"  absence  of  such  dispute 
by  any  party  thereto. 

The  words  "and  no  such  restraining  order  or  injunction,"  in  this 
paragraph,  limits  all  that  follows.  First,  the  acts  mentioned  in  this 
paragraph  which  can  not  hereafter  be  forbidden  must  be  such  as 
are  done  in  cases  where  employers  and  employees,  etc.,  are  parties; 
and,  secondly,  such  as  are  done  in  cases  ' '  involving  or  growing  out 
of  a  dispute  concerning  terms  or  conditions  of  employment." 

And  the  order  or  injunction  shall  not  prohibit  "any  person  or 
persons  from  terminating  any  relation  of  employment." 

I  have  already  shown  how  the  bogus  element  of  malicious  motive 
has  been  introduced  into  strike  cases,  and  there  have  been  some 
statements  by  opposition  counsel,  and  consequently  some  misrep- 
resentation, as  to  what  Justice  Harlan  actually  decided  in  Arthur 
v.  Oakes  (63  Fed.  R.,  310,  317).  But  really  there  is  no  room  for  a 
misconstruction.  He  said: 

The  rule,  we  think,  is  without  exception  that  equity  will  not  compel  the  actual, 
affirmative  performance  by  an  employee  of  merely  personal  service  any  more  than 
it  will  compel  an  employer  to  retain  in  his  personal  services  one  who,  no  matter  for 
what  cause,  is  not  acceptable  to  him  for  service  of  that  character.  The  right  of  an 
employee  engaged  to  perform  personal  service  to  quit  that  service  rests  upon  the 
same  basis  as  the  right  of  his  employer  to  discharge  him  from  further  personal  service. 
If  the  quitting  in  the  one  case  or  the  discharging  in  the  other  is  in  violation  of  the 
contract  between  the  parties,  the  one  injured  by  the  breach  has  his  action  for  dam- 
ages; and  a  court  of  equity  will  not,  indirectly  or  negatively,  by  means  of  an  injunc- 
tion restraining  the  violation  of  the  contract,  compel  the  affirmative  performance 
from  day  to  day  or  the  affirmative  acceptance  of  merely  personal  services.  Relief 
of  that  character  has  always  been  regarded  as  impracticable. 

Sitting  with  Justice  Harlan  at  circuit  in  that  case  were  other 
learned  jurists,  but  there  was  no  dissent  from  these  views. 

And  in  this  connection  I  call  attention  to  the  priority  of  Judge 
Taft's  decisions  in  Moores  v.  Bricklayers'  Union,  in  the  Thomas  case, 
in  the  Toledo  and  Ann  Arbor  case  to  this  decision  of  Justice  Harlan. 
It  would  appear,  however,  that  Mr.  Taft  has  never  seen  or  had  his 
attention  called  to  the  decision  in  the  Arthur  v.  Oakes  case.  This 
must  be  true,  because  the  most  recent  expression  of  his  views  are 
directly  opposed  to  those  of  Justice  Harlan  as  expressed  in  that  case. 

The  most  extreme  opponents  of  effective  legislation,  formally  at 
any  rate,  concede  great  latitude  in  the  matter  of  severing  the  rela- 
tion of  employer  and  employee;  in  other  words,  the  right  to  strike. 
But  they  make  the  concession  with  reservations  and  qualifications 
which  deprive  their  concession  of  nearly  all  its  value.  They  say  to 
the  wage  earners,  "Yes;  you  may  strike  for  a  lawful  purpose,  but  if 


40  PENDING   BILLS  FOR  REGULATING  INJUNCTIONS. 

the  circumstances  give  warrant  to  a  belief  that  you  are  inspired  by 
malicious  motives  in  striking,  then  your  act  of  striking  falls  within 
the  definition  of  conspiracy."  This  view  was  fairly  expressed  by 
President  Taft  in  the  June  number  of  McClure's  Magazine,  1909 
(p.  204).  In  that  article  Mr.  Taft  refers  to  several  cases  of  injunc- 
tions granted  by  himself  when  a  judge  into  which,  for  the  purpose  of 
giving  effect  to  an  injunction  greater  saction  of  authority,  he  had 
imported  from  afar  the  theory  of  a  boycott  and  strike  combined. 
But  he  finally  reached  the  strike  question  pure  and  simple  and 
showed  his  complete  surrender  and  subservience  to  P.  very  thing  that 
is  extreme  and  nostile  to  workingmen  in  the  shape  of  judicial  utter- 
ance, by  approving  the  doctrine  of  his  own  early  decision  hi  which  we 
first  meet  the  strange  doctrine  that  a  court  may  inquire  into  the 
motives  of  strikers.  In  the  same  article  he  attributes  the  growth  of 
organized  labor  in  recent  years  to  such  injunction  decisions  as  he  had 
rendered  in  the  Bricklayers',  the  Phelan,  the  Toledo  and  Ann  Ar- 
bor, and  similar  cases.  But  he  did  not  fairly  or  truly  state  the 
result  of  the  Arthur  case.  He  stated  that  "it  was  left  open  as  an 
undecided  question  whether  men  who  were  inciting  employees  to 
quit  then*  employer  in  a  violation  of  some  legal  duty  might  be  re- 
strained from  doing  so."  In  that  case  the  court  clearly  and  emphat- 
ically denied  the  jurisdiction  of  a  court  of  equity  to  restrain  men 
from  striking  in  violation  of  a  contract,  as  is  shown  by  words  just 
quoted  from  the  opinion. 

The  twisting  and  perverting  a  boycott  element  into  strike  cases,  a 
feature  of  every  decision  of  Judge  Taft,  in  order  to  give  some  color  of 
legality  to  an  injunction,  subsequently  became  a  feature  of  many 
strike  injunctions.  It  was  a  feature  in  Fame  Lumber  Co.  v.  Neal  in 
the  District  Court  for  the  Southern  District  of  New  York,  not  offi- 
cially reported,  and  in  Sailors'  Union  v.  Hammond  Lumber  Co., 
decided  by  the  circuit  court  at  San  Francisco  in  1907. 

Opposition  counsel,  in  referring  to  what  Justice  Holmes  said  in 
Vergelahn  v.  Guntner  (167  Mass.,  92),  never  omit  to  mention  the 
fact  that  he  was  giving  the  opinion  for  the  minority  in  that  case,  but 
never  do  mention  the  fact  that  these  have  since  become  the  settled 
law  in  that  State.  I  refer  to  Pickett  v.  Walsh  (192  Mass.,  572), 
already  quoted. 

The  next  limitation  upon  the  power  of  the  courts  to  be  noticed  is 
that  whereby  they  are  forbidden  to  enjoin  any  person  or  persons 
"from  ceasing  to  perform  any  work  or  labor." 

In  discussing  this  provision  Mr.  Hines,  as  representative  of  the 
railroads,  said: 

Section  10  of  the  act  to  regulate  commerce  imposes  penalties  not  only  upon  the  com- 
mon carrier  which  violates  provisions  of  the  act,  but  also  upon  agents  or  persons  acting 
for  or  employed  by  such  common  carriers. 

Now,  section  10  of  the  interstate  commerce  act  contains  many 
penal  clauses  of  a  similar  character.  Is  each  of  them  to  stand  as  a 
separate  argument  against  any  legislation  to  regulate  the  issuance 
of  injunction  now  and  forever?  It  would  be  difficult  or  impossible 
ever  to  make  any  such  regulations  unless  the  regulation  of  interstate 
commerce  and  of  the  conduct  of  carriers  were  simultaneously  aban- 
doned. It  should  be  a  sufficient  answer  to  all  that  to  say  that  the 
Constitution  of  the  United  States  supersedes  the  jurisdiction  of 
courts  of  equity  and  prohibits  involuntary  servitude. 


PENDING  BILLS  FOE  REGULATING  INJUNCTIONS.  41 

Justice  Harlan,  in  Arthur  v.  Oakes,  said  something  about  certain 
circumstances  under  which  men  might  be  enjoined  even  from  strik- 
ing. Although  it  was  a  dictum,  I  respect  it.  He  clumsily  expressed 
the  idea  which  Justice  Holmes  made  clear  in  Aikens  v.  Wisconsin 
(195  U.  S.,  205).  Any  constitutional  right  may  cease  to  become 
such  when  embraced  within  a  comprehensive  scheme  of  illegality. 
And  that  holds  true  whether  or  not  a  labor  dispute  exists. 

But  here  we  must  distinguish  between  a  mere  strike  and  a  scheme 
of  illegality  extending  beyond  and  outside  the  strike.  A  strike 
which  includes  trespassing  or  destroying  property  or  interfering  with 
possession  and  use  of  property  can  of  course  be  enjoined  in  so  far 
as  the  strike  becomes  a  component  part  of  the  conspiracy,  but  no 
further.  On  the  other  hand,  if  the  act  in  contemplation  be  merely  a 
strike  the  motives  are  immaterial. 

The  argument  of  Mr.  Hines  is  too  broad  and  is  easily  reducible  to 
absurdity  by  extension  to  other  duties  or  liabilities  of  railroad  com- 
panies. A  conclusive  answer  is  that  both  the  companies  and  em- 
ployees are  subject  to  penalties,  and  the  companies  are  not  prohibited 
from  discharging  unfaithful  employees. 

Human  nature  can  not  be  dealt  with  by  statutes,  directing  persons 
to  continue  in  incompatible  relations,  or  to  endure  intolerable  condi- 
tions. The  most  solemn  and  formal  contract  is  merely  a  social  treaty, 
and  contracts  for  personal  service  are  in  their  very  nature  terminable. 
Specific  performance  through  injunction  process,  even  if  practicable 
at  all,  would  be  a  cruel  remedy.  Even  with  respect  to  domestic  rela- 
tions, injunctions  are  confined  to  property  rights. 

The  next  clause  with  its  connection  forbids  an  order  or  injunction  to 
prevent  any  one  "from  recommending,  advising,  or  persuading  others 
by  peaceful  means,  so  to  do";  that  is,  to  terminate  the  relation  of 
employment,  or  to  cease  to  perform  any  work  or  labor. 

This  is  fully  covered  by  what  has  been  or  will  be  said  under  other 
heads. 

We  next  have  the  prohibition  against  restraining  or  enjoining  any 
person  or  persons  "from  attending  at  or  near  a  house  or  place  where 
any  person  resides  or  works,  or  carries  on  business,  or  happens  to  be, 
for  the  purpose  of  peacefully  obtaining  or  communicating  informa- 
tion, or  peacefully  persuading  any  person  to  work,  or  to  abstain  from 
working." 

The  objections  to  this  clause  are  based  wholly  on  misconstruction. 
Indeed,  the  only  way  to  even  plausibly  oppose  it  is  to  extend  its  mean- 
ing by  false  construction.  Even  without  the  word  "  peacefully,"  as 
here  used,  the  courts  would  never  construe  it  to  authorize  an  illegal 
act.  Counsel  in  opposition,  either  innocently  or  willfully  overlook  the 
fact  that  the  formation  of  a  conspiracy  is  itself  an  illegal  act.  And  as 
to  the  difficulty  of  drawing  the  line  between  legality  and  illegality,  it 
is  not  real  but  purely  imaginary.  At  any  rate,  any  practical  difficulty 
of  discriminating  would  be  no  reason  for  opposing  the  legislative  asser- 
tion of  a  correct  legal  principle.  (Hale  v.  Henkel,  201  U.  S.,  43.) 

Though  out  of  its  proper  order,  it  seems  more  conducive  to  a  clear 
understanding  to  here  call  attention  to  the  last  clause  which  qualifies 
and  gives  its  tenor  and  tone  to  all  the  other  clauses  in  the  last  para- 
graph. It  will  be  for  the  courts  to  construe  the  section;  and  if  any 
one  attempts  to  defend  a  conspiracy,  coercion,  threats,  or  any  illegal 
act  however  peaceable  in  form,  because  the  word  "peaceably"  or 


42  PENDING   BILLS   FOB  REGULATING  INJUNCTIONS. 

"peacefully"  is  used,  the  court  will  give  effect  to  the  entire  section 
and  read  the  last  clause  into  every  part  of  it  as  evidence  that  Congress 
did  not  intend  to  sanction  as  single  unlawful  act.  The  last  stands  as 
a  saving  clause,  though  appearing  to  be  scarcely  needed,  since  all  the 
acts  and  conduct  specifically  mentioned  in  section  266c  of  the  bill  are 
lawful  at  all  times  and  under  all  circumstances.  \\  ho  will  say  that  it 
is  unlawful  for  any  one  to  terminate,  for  any  cause  appearing  to  him 
sufficient,  the  relation  of  employer  and  employee?  If  conditions 
become  intolerable  one  should  be,  and  is  by  law,  excused  for  ceasing  to 
perform  any  work  or  labor;  and  surely  the  giving  of  advice,  whether 
wisely  or  unwisely,  so  to  <?ease  in  performance  should  have  no  legal 
trammels  upon  it. 

We  have  next  these  words: 

Or  frpjn  attending  at  or  near  a  house  or  place  where  any  person  resides  or  works 
or  carries  on  business,  or  happens  to  be  for  the  purpose  of  peacefully  obtaining  or 
communicating  information. 

Counsel  have  striven  to  place  upon  these  words  a  construction 
which  would  authorize  a  serious  invasion  of  private  rights.  But 
statutes  are  construed  reasonably  and  in  the  light  of  conditions  and 
of  any  evils  existing  at  the  time  and  which  are  sought  to  be  rem- 
edied. If  you  should  examine  the  court  orders  that  I  have  called  to 
your  attention  you  would  see  the  evil  and  the  need  of  a  remedy. 
But  you  can  see  it  in  the  official  reports  of  cases.  In  addition  to  a 
few  matters  which  upon  sufficient  allegations — whether  true  or  false 
I  need  not  now  discuss — the  defendants  are  properly  forbidden  to  do, 
such  as  trespassing  upon  private  property,  tney^are  forbidden  to 
persuade,  peaceably  or  otherwise,  tne  employees  of  the  plaintiff  to 
quit  or  unemployed  persons  not  to  enter  his  employ,  and  are  some- 
times forbidden  to  speak1  to  them  at  all,  or  even  to  approach  them. 
I  do  not  see  how  it  would  be  possible  for  any  court  to  construe  that 
clause  as  legalizing  the  entering  of  anyone's  house  without  his  con- 
sent, or  transgressing  a  law,  or  even  violating  any  social  proprieties 
in  any  residence  or  other  place.  If  so  construed  it  would  be  uncon- 
stitutional as  relating  to  private  residences,  and  I  am  sure  we  do  not 
seek  any  unconstitutional  legislation. 

Moreover,  outside  of  and  untouched  by  this  provision  stands  the 
police  power.  In  addition  to  the  constitutional  right  of  all  persons 
to  defend  and  protect  their  homes  from  hostile  or  even  unwelcome 
intrusion  is  the  right  to  call  for  police  protection,  and  as  against  a 
complaint  or  grievance  of  that  sort  there  is  no  pretense  that  the 
police  are  not  ready  to  afford  protection.  Nor  can  any  such  showing 
be  made,  because  the  police  are  not  only  always  ready  but  too 
wiling  to  U33  thnir  authi;*ity  and  fores  on  such  occasijns. 

I  will  in  this  connection  refer  for  a  moment  to  the  attempt  of  coun- 
sel for  several  railroads,  Mr.  Hines,  to  give  a  construction  to  this  pro- 
vision which  would  enable  crowds  to  assemble  on  railroad  property 
and  obstruct  transportation.  The  answer  is  the  same  as  before. 
There  is  only  one  direction  in  which  railroads  have  ever  looked  for 
protection  against  all  such  interferences,  and  that  is  toward  the  police 
power.  They  must  look  to  and  rely  upon  that  hereafter  as  .hereto- 
fore. Whether  this  bill  passes  or  not.  injunctions  would  be  as  ine<:'ec- 
tual  hereafter  as  they  have  been  in  times  pr  st. 

The  word  "peacefully,''  used  here,  might  have  been  safely  omitted, 
but  is  inserted  in  order  to  remove  all  doubt. 


PENDING  BILLS  FOE  BEGULATING  INJUNCTIONS.  43 

PEACEFUL   PICKETING. 

The  conduct  here  exempted  from  injunctions  has  come  to  be  known 
as  picketing.  Picketing  is  undertaken  to  preserve  the  status  quo 
created  by  a  strike.  The  act  of  picketing  does  not  stand  on  the 
same  basis  as  the  strike.  Though  incidental  thereto,  it  is  neverthe- 
less in  most  or  all  aspects  an  independent  proceeding  affecting  the 
employer  with  whom  the  strikers  have  their  dispute,  indirectly.  In 
picketing,  whether  by  peaceful  methods  or  with  violence,  the  pick- 
et ers  deal  directly  with  third  persons.  Hence,  it  has  always  seemed 
that  allegations  concerning  acts  done  by  way  of  picketing  a  strike 
were  foreign  to  the  issue  and  totally  irrelevant  in  complaints  against 
strikers.  It  is  otherwise  of  course  where  the  picketing  consists  in  or 
amounts  to  trespasses  upon  the  premises  of  complainant  or  otherwise 
inflicts  upon  him  a  direct  loss.  But  I  need  not  discuss  cases  of 
picketing  involving  trespass,  because  trespass  disturbs  the  possession 
of  property  and  is  unlawful.  Only  lawful  acts  are  covered  by  this 
bill. 

Here  is  an  excerpt  from  the  opinion  in  Pierce  v.  Stablemen's  Union 
(156  Cal.,  70).  It  would  read  better,  and  be  at  least  relevant  if  not 
material,  if  used  in  an  action  at  law  brought  by  the  party  impeded 
by  the  picketers  while  in  quest  of  employment.  I  do  not  read  it 
because  I  think  it  good  law,  but  as  an  instance  of  a  perverted  and 
erroneous  view  of  the  law.  It  is  as  follows  (p.  79) : 

The  inconvenience  which  the  public  may  suffer  by  reason  of  a  boycott  lawfully 
conducted  is  in  no  sense  a  legal  injury.  But  the  public's  rights  are  invaded  the 
moment  the  means  employed  are  such  as  are  calculated  to  and  naturally  do  incite  to 
crowds,  riots,  and  disturbances  of  the^  peace.  And  as  illegally  interfering  with  his 
busim  ss  the  employer  may  justly  complain  when  the  rights  of  his  nonunion  employee 
and  the  rights  of  the  public  are  thus  invaded. 

It  is  the  last  sentence  to  which  I  take  exception. 

PRESENT    LAW   AS    TO    PICKETING. 

In  picketing  cases  it  is  obvious  that,  unless  the  picketers  resort  to 
trespasses  on  the  premises  of  the  complainant,  the  conduct  of  the 
defendants  complained  of,  if  unlawful,  is  without  essential  connection 
with  avowed  purposes  of  the  union,  while  if  peaceable,  amounting 
to  no  more  than  persuasion,  the  picketing  should  be  exempt  from 
injunctive  restraint.  Nevertheless,  Federal  and  some  State  courts 
of  equity  have  on  several  occasions  exercised  a  power  herein 
which  was  virtually  police  power,  and  have  gone  even  further  in 
coercion  and  restriction  than  the  police  would  be  warranted  in  going. 

That  the  act  of  picketing  is  distinct  from  the  dispute  proper,  often 
governed  by  different  principles,  and  requiring  separable  judicial 
treatment,  was  recognized  by  the  Supreme  Court  of  California  in  the 
case  just  referred  to  of  Pierce  v.  Stablemen's  Union.  And  the  court 
in  that  case,  while  affirming  an  order  granting  an  injunction,  placed 
in  the  forefront  of  the  opinion  the  assertion  previously  quoted  which 
reads  rather  strangely,  and  appears  somewhat  out  of  place  in  an 
equity  case  brought  against  an  organization  of  wage-earners,  or  an 
association  formed  for  any  other  legal  purpose. 

The  term  "picketing"  has  been  appliea  in  all  that  class  of  cases 
where  a  party  complains  that  he  was  being  injured  or  his  business 


44  PENDING  BILLS  FOE  REGULATING  INJUNCTIONS. 

was  being  interferred  with  by  efforts  of  members  of  unions  to  pre- 
vent the  places  which  they  had  vacated  being  filled  OF  held  by  per- 
sons who  sought  employment,  or  who  might  otherwise  be  employed 
in  their  stead.  In  some  instances  picketing  has  been  resorted  to  in 
furtherance  of  a  boycott,  but  such  are  exceptional. 

In  the  category  of  picketing  cases,  are  the  cases  where  the  picketers 
are  also  strikers,  or  are  instigated  by  strikers,  even  where  such 
strikers  have  term  contracts  with  their  employers  but  have  found 
conditions  of  employment,  outside  the  express  terms  of  employment, 
intolerable,  or  have  found  other  pretexts  for  terminating  the  service, 
and  nevertheless  attempt  to  prevent  the  employment  of  others  hi 
their  stead.  Whatever  we  may  think  of  the  morality  of  such  con- 
duct, it  is  evident  that,  in  the  final  analysis,  the  jurisdiction  in  equity 
has  no  other  basis  than  a  theory  that  the  employer  has  a  vested 
property  interest  in  the  unattached  labor  of  the  vicinage.  There 
have  been  many  injunctions  granted  in  such  cases.  Hitcnman  Coal 
&  Coke  Co.  v.  Mitchell,  Pierce  v.  Stablemen's  Union,  Sailors'  Union  of 
the  Pacific  Coast  v.  Hammond  Lumber  Co.,  Adams  v.  Columbia 
Typographical  Union,  and  Kansas  &  Texas  Coal  Co.  v.  Denny  were 
picketing  cases.  Pierce  v.  Stablemen's  Union  (156  Cal.,  70)  may  be 
selected  as  a  typical  case. 

The  court  forgot  or  completely  ignored  the  distinction  between  legal 
and  equitable  jurisdiction,  as  is  evident  from  language  found  in  the 
opinion  (p.  78),  where  it  said: 

The  two  classes  of  persons  to  whom  we  have  adverted  and  whose  rights  necessarily 
become  involved  where  a  picket  or  patrol  is  established  are:  (1)  The  rights  of  those 
employed  or  seeking  employment  in  the  place  of  the  striking  laborers;  and  (2)  the 
rights  of  the  general  public. 

Now,  unless  the  employing  capitalist  has  a  property  interest  in  mere 
labor  power,  holding  true  even  in  the  absence  of  a  contract  of  employ- 
ment with  the  persons  whose  labor  he  requires,  who  are  total  strangers 
to  the  immediate  dispute  and  whose  names  and  identity  may  be 
unknown,  it  is  impossible  to  find  a  basis  for  the  jurisdiction  in  such 
cases.  And  without  such  interest,  ah1  else  being  conceded,  it  is  appar- 
ent that  the  only  persons  injured,  in  legal  sense,  by  the  acts  or  conduct 
on  the  part  of  picketers  complained  of,  are  the  persons  themselves 
whom  he  otherwise  might  be  able  to  employ,  but  who  are  never  made 
parties  to  the  suit;  at  any  rate  in  no  case  thus  far  reported. 

Here,  then,  we  have  an  additional  reason  for  the  provision  in  the 
clause  we  are  now  discussing  which  forbids  the  issuance  of  an  injunc- 
tion or  restraining  order  against  peaceful  persuasion  in  furtherance  of 
a  labor  dispute.  The  same  defect  of  jurisdiction  exists,  of  course, 
where  the  picketing  amounts  to  threats  of  violence,  but  it  is  thought 
that  labor  will  be  sufficiently  safeguarded  if  the  bill  be  worded  in  the 
form  as  presented,  that  part  to  be  considered  in  connection  with  other 
parts. 

Were  it  not  for  a  popular  prejudice  or  perverted  view,  amounting 
when  found  in  the  judicial  mind  to  a  class  bias,  the  applications  for 
the  injunctions  in  cases  of  mere  picketing  would  never  be  enter- 
tained for  an  instant. 

Competition,  with  its  strifes,  hardships,  sacrifices,  and  losses  is  the 
price  we  pay  for  liberty.  There  is  no  end  or  cessation  of  competition 
between  those  engaged  in  what  in  restricted  sense  we  designate  as 
"business."  Overpersuasion,  misrepresentation,  deception,  all  forms 


PENDING  BILLS  FOK   KEGULATING  INJUNCTIONS.  45 

of  overreaching,  with  a  freqeunt  resort  to  coercion  and  force,  con- 
stitutes what  later-day  progressives  of  all  parties  call  "unfair  compe- 
tition." But  these  have  ,ever  been  incidents  of  competition  and 
probably  will  always  be  found,  anything  Congress  or  other  legislatures 
or  the  courts  may  do  to  regulate  business  to  the  contrary  notwith- 
standing. But  the  competition  between  labor  and  capital  each  for 
its  share  of  the  rewards  of  industry,  and  between  persons  seeking 
employment,  which  is  also  limited  as  is  trade,  goes  on  likewise, 
characterized  by  the  same  regretable  but  inevitable  iucidents. 

Those  who  criticize  and  condemn  the  efforts  of  workingmen  at 
organizing  and  striving  in  an  organized  capacity  to  prevent  their 
places  being  taken  by  others,  justifying  the  use  of  injunctive  process 
against  them,  assert  the  right  of  every  man  willing  to  labor  to  obtain 
employment.  That  whole  contention  is  based  on  the  false  assump- 
tion that  there  is  employment  in  the  world  for  every  man  desiring  and 
competent  for  it.  The  sad  truth  is  otherwise,  and  the  concentration 
of  industry  in  corporate  form  with  the  more  efficient  use  of  ma- 
chinery on  a  large  scale  intensifies  and  constantly  extends  the  evil  of 
nonemployment. 

The  next  clause  reads  thus: 

Or  from  ceasing  to  patronize  or  to  employ  any  party  to  such  dispute. 

The  act  which  the  courts  are,  by  these  wards,  forbidden  to  enjoin, 
has  been  sometimes  called  the  "primary  boycott."  The  cases  in 
which  illegality  attaches  to  the  conduct  thus  described  arises  from 
conspiracies  and  must  extend  beyond  the  original  parties.  It  is  then 
called  a  "secondary  boycott."  The  whole  subject  is  more  conven- 
iently discussed  under  the  next  head. 

We  now  come  to  the  clause  reading: 

Or  from  recommending,  advising,  or  persuading  others,  by  peaceful  means,  so  to  do. 

That  is  to  say,  no  party  to  a  labor  dispute  shall  be  enjoined  from 
recommending,  advising,  or  pursuading  others  by  peaceful  means  to 
cease  patronizing  or  employing  any  party  thereto. 

A  preliminary  question  to  be  answered  is,  Who  are  the  original 
parties  to  a  dispute  concerning  terms  or  conditions  of  employment? 

This  is  a  question  which,  if  fully  exploited,  would  require  repetition 
and  overlapping  much  that  has  been  already  said.  But  in  order  to 
clear  up  the  fogs  and  mists  raised  by  much  misstatement  tending 
to  establish  the  impression  that  this  clause  legalizes,  or  at  least 
forbids  injunctive  relief  against  secondary  boycotts,  the  question  of 
who  are  and  who  are  not  the  parties  to  a  dispute  resulting  hi  a  boy- 
cott or  blacklist  should  be  here  answered,  if  possible.  In  answering 
this  question  we  have  the  answer  to  the  question  of  the  distinction 
between  the  primary  and  secondary  boycott. 

Some  courts  have  denied  the  existence  of  any  real  difference  be- 
tween a  primary  and  secondary  boycott.  For  instance  the  Supreme 
Court  of  Calif ordia  in  Pierce  v.  Stablemen's  Union  (156  Cal.,  70).  I 
think  myself  that  it  is  unwise  statesmanship  on  the  part  of  our  judi- 
cial lawmakers  to  make  any  such  distinction  when  they  assume  the 
task  of  enacting  special  laws  for  special  cases  in  the  form  of  injunc- 
tions. But  the  courts  do  recognize  a  technical  distinction  and  this 
bill  follows  the  courts  in  that  respect.  So  that  regardless  of  any 
personal  views  I  must  follow  the  lines  of  the  bill  conforming  to  the 
views  of  the  courts. 


46  PENDING   BILLS  FOE   REGULATING   INJUNCTIONS. 

Here  is  an  illustration  of  what  I  understand  to  be  meant  by  a 
secondary  boycott.  One  hundred  men  strike — we  will  say  a  stove 
and  range  company — the  Metal  Polishers'  Union.  They  are  parties 
to  that  dispute.  They  go  all  over  the  United  States  and  advise  or 
persuade  its  customers  to  cease  trading  with  it.  They  have  that 
right  by  this  bill;  they  have  that  right  now.  That  is  the  primary 
boycott.  Now  one  of  these  firms  having  refused  to  cease  buying  of 
the  Stove  &  Range  Co.,  they  institute  a  boycott  against  it.  That 
is  a  secondary  boycott.  It  is  not  touched  by  this  bill  because  such 
firm  so  boycotted  is  not  a  party  to  the  dispute. 

This  provision  bears  alike  on  employers  and  employees.  No  em- 
ployer can  be  enjoined  from  ceasing  to  employ,  or  from  peacefully 
recommending  and  persuading  others  not  to  employ  any  party  to  a 
labor  dispute.  It  withholds  from  employers  the  injunctive  remedy 
against  the  so-called  blacklist,  which  is  in  vogue  to  a  far  greater 
extent  than  is  the  boycott.  So  the  clause  awards  to  employers  and 
employees  equal  treatment.  Now,  let  us  take  any  employer.  He 
has  a  dispute  with  employees  and  discharges  them  and  recommends, 
persuades,  and  advises  other  employers  not  to  employ  them,  and  if 
they  follow  his  advice  he  has  blacklisted  them.  It  is  my  belief  that 
this  corresponds  exactly  to  what  some  courts  call  the  primary  boy- 
cott, and  that  was  held,  even  by  Judge  Taft,  to  be  legal. 

But,  now,  suppose  one  of  these  other  employers  does  not  see  fit  to 
follow  his  advice,  and  in  order  to  enforce  compliance  he  gets  others 
to  join  him  in  some  retaliatory  action  toward  the  persons  whom  he 
has  so  advised.  That  would  be  going  outside  the  dispute  and  he 
could  be  enjoined.  The  wrong  might  not  consist  in  blacklisting,  but 
that  is  immaterial.  The  essential  idea  is  that  it  is  a  wrongful  act 
and  that  two  or  more  are  acting  in  concert  to  perpetrate  it.  They 
could  all  be  enjoined,  anything  in  this  bill  to  the  contrary  notwith- 
standing. 

Now  revert  to  the  employee  again.  He  ceases  to  patronize  A, 
with  whom  he  has  a  dispute,  and  recommends  others  to  also  cease. 
If  they  all  cease,  well  and  good;  he  is  within  his  rights.  But  if  B, 
one  so  advised,  does  not  see  fit  to  cease  and  the  employee  joins  others 
in  a  boycott  of  B,  that  is  a  new  quarrel.  It  can,  notwithstanding 
anything  hi  this  bill,  be  enjoined,  waiving  for  present  purposes  the 
question  of  property  rights. 

I  will  now  give  a  clear  instance  of  the  secondary  boycott  of  a 
slightly  different  kind.  It  is  a  very  common  instance  which,  how- 
ever, we  never  hear  of  in  the  courts.  There  is,  we  will  say,  a  manu- 
facturer and  dealer  hi  stoves  at  St.  Louis.  It  is,  we  will  say,  an 
excellent  article  and  could  succeed  on  its  own  merits.  But  the  com- 
panv  is  tempted  by  a  scheme  for  greater  profits  through  exclusive 
marke ts  and  higher  prices.  Taking  advantage  of  the  popularity  of 
its  brand  of  goods  in  a  wide  section,  it  makes  exclusive  contracts  with 
the  stove  dealers  throughout  that  section,  especially  in  the  smaller 
cities  and  towns,  that  these  dealers  shall  put  up  the  price  of  this 
stove  and  refuse  to  handle  the  stoves  of  that  manufacturer's  chief 
competitor  in  the  manufacture  of  stoves,  the  advance  on  the  usual 
and  fair  price  to  be  divided  between  the  manufacturer  and  dealer. 
Now  that  is  an  arrangement  in  restraint  of  trade — at  any  rate  the 
general  scheme  is  a  combination  in  restraint  of  trade.  So  far 
we  have  only  what  may  be  also  termed  a  primary  boycott  directed 


PENDING  BILLS  FOE  KEGULATING  INJUNCTIONS.  47 

against  the  competitor.  But  suppose  the  argeement  contains  a 
stipulation  that  in  case  the  dealer  buys  any  goods  from  any  other 
manufacturer  the  stove  maker  will  refuse  to  sell  him  any  more  stoves 
on  any  terms,  and  the  agreement  is  violated  in  that  respect,  and  the 
threat  is  carried  out  ?  There  you  have  the  secondary  boycott.  The 
agreement  is  itself  a  conspiracy  in  restraint  of  trade  because  hurtful 
to  public  interest.  It  is  also  a  conspiracy  because  attempting  to 
sanction  a  secondary  boycott  to  be  inaugurated  by  one  of  the  parties 
against  the  others  in  the  event  that  one  of  them  does  not  persist  in 
performing  his  part  in  the  primary  boycott. 

Now,  these  are  between  business  men.  The  country  is  overlaid  with 
them,  overlapping  each  other  in  all  directions.  They  seldom  or 
never  come  before  the  courts  in  private  litigation,  and  although 
high  prices  are  extorted  through  such  arrangements,  public  officers 
ignore  them. 

The  view  I  have  here  taken  of  the  question  of  what  constitutes  ille- 
gality in  strike  and  boycott  cases  is  that  advanced  by  the  supreme 
court  of  Massachusetts,  New  York,  Rhode  Island,  Indiana,  Missouri, 
Montana,  California,  one  or  two  other  States,  by  Judge  Sanborn 
in  the  case  of  Allis,  Chambliss  Co.  v.  Ironmolders'  Lnion  (166  Fed  R., 
50),  and  the  Circuit  Court  of  Appeals  of  the  Second  Circuit,  as  ex- 
pressed by  Judge  Noyes  in  National  Fireproofing  Co.  v.  Mason 
Builders'  Association.  By  these  courts  the  law  governing  strikes  and 
boycotts  is  simplified,  and  the  turning  point  of  legality  or  illegality 
is  found  not  in  the  act  of  striking  or  govcotting  per  se,  but  in  the 
means  employed,  or  intended  to  be  employed,  to  carry  it  on.  Of 
course,  workingmen  may  actually  conspire  in  criminal  sense  as  may 
others;  but  this  bill  leaves  conspiracies  untouched. 

The  provisions  of  this  bill  conform  to  these  more  recent,  more 
humane,  and  more  enlightened  views.  A  few  illustrative  cases 
additional  to  those  already  discussed  will  be  now  briefly  referred  to. 

In  Jacobs  v.  Cohen  (18  N.  Y.,  207,  211)  the  court,  speaking  of  a 
strike,  said: 

That,  incidentally,  it  might  result  in  the  discharge  of  some  of  those  employed  for 
failure  to  come  into  affiliation  with  their  fellow  workmen's  organization,  or  that  it 
might  prevent  others  from  being  engaged  upon  the  work,  is  neither  something  of  which 
the  employers  may  complain  nor  something  with  which  public  policy  is  concerned. 

The  supreme  court  of  the  same  State,  in  Mills  v.  United  States 
Fruiting  Co.  (99  Apj».  Div.,  605;  N.  Y.  Supp  ,  185,  190),  said: 

There  is  a  manifest  distinction,  well  recognized,  between  a  combination  of  workmen 
to  secure  the  exclusive  employment  of  its  members  by  a  refusal  to  work  with  none 
other  and  a  combination  whose  primary  object  is  to  procure  the  discharge  of  an  out- 
sider and  his  deprivation  of  all  employment.  In  the  first  case  the  action  of  the  com- 
bination is  primarily  for  the  betterment  of  the  fellow  member.  In  the  second  case 
such  action  is  primarily  "to  impoverish  and  crush  another"  by  making  it  impossible 
for  him  to  work  there,  or,  so  far  as  may  be  possible,  anywhere.  The  difference  is 
between  combination  for  welfare  of  self  and  that  for  the  persecution  of  another.  The 
primary  purpose  of  one  may  necessarily  but  incidentally  require  the  discharge  of  an 
outsider;  the  primary  purpose  of  the 'other  is  such  discharge,  and,  so  far  as  possible, 
an  exclusion  from  all  labor  in  his  calling.  Self-protection  may  cause  incidental  injury 
to  another.  Self-protection  does  not  aim  at  malevolent  injury  to  another. 

It  will  be  seen  that  Judges  Loring,  Noyes,  Sanborn,  Holmes, 
McKenna,  Holloway,  Parker,  and  their  associates  in  the  respective 
courts,  refused  to  be  moved  by  the  pathetic  appeals  of  counsel  that 
some  corporation  or  firm  employing  labor  on  a  large  scale  was  about 
to  be  financially  ruined.  Tnay  say  that  the  rights  of  each  of  the 


48  PENDING  BILLS  FOE  BEGULATING  INJUNCTIONS. 

many,  though  financially  small  in  comparison,  must  be  preserved 
though  great  losses  may  result  to  an  individual;  that  injury  inflicted 
from  the  exercise  of  a  lawful  right  is  darnnum  absque  injuria. 

It  is  impossible  for  the  Federal  Government  as  now  administered 
to  consistently  condemn  any  form  of  the  boycott.  For  good  and 
sufficient  reasons,  no  doubt,  the  Government  has  during  the  last  four 
years  prosecuted  370  boycotts  against  seed  dealers  and  is  contem- 
plating an  extension  of  its  boycott  system.  The  Washington  Star 
of  July  27,  1912,  contained  a  news  item  reading,  in  part,  as  follows: 

Promoters  of  fake  orchard,  irrigation,  timber  growing,  and  similar  farming  schemes, 
it  is  announced,  can  take  notice  that  they  are  likely  to  be  registered  in  a  list  of  fraudu- 
lent companies  now  being  prepared  by  the  Department  of  Agriculture.  The  depart- 
ment is  making  a  register  for  office  reference  only,  but  it  is  intended  to  protect 
investors  who  are  wise  enough  to  make  inquiries  before  sinking  their  money  in  some 
advertised  land  scheme.  The  subject  is  rather  a  delicate  and  difficult  one  to  handle, 
for  Congress  has  made  no  provision  for  the  department  issuing  a  blacklist.  Congress 
did  this  some  years  ago  in  the  case  of  seed  merchants  selling  adulterated  seeds.  The 
Secretary  of  Agriculture  was  directed  to  buy  in  the  open  market  a  certain  number 
of  seed  samples,  mostly  forage  plant  seeds,  annually.  These  were  to  be  analyzed 
and  the  names  of  the  venders  and  the  results  of  the  analyses  published. 

This  law  is  still  in  force  and  the  list  is  published  each  year.  The  analyses  were 
revelations.  Many  of  the  samples  were  adulterated  with  50  per  cent  or  dirt,  trash, 
and  weed  seed.  A  few  of  the  samples  were  almost  pure  and  others  had  none  of  the 
forage  seeds  supposed  to  be  sold  at  all.  Tke  publication  of  the  names  in  the  black- 
list was  remarkable,  and  few  of  the  venders  have  ever  been  caught  twice. 

It  will  be  observed  that  the  Star,  without  the  remotest  semblance 
of  propriety,  places  these  crusades  designed  to  deprive  so-called  busi- 
ness men  o"f  their  customers  in  the  category  of  blacklisting. 

It  is  practically  impossible  to  discuss  the  sociological  and  legal  prin- 
ciples governing  the  strike  and  boycott  and  other  movements  of  organ- 
ized labor  fairly  and  intelligently  without  taking  a  risk  of  being 
misunderstood,  misconstrued,  and  misrepresented.  In  the  first  place 
the  boycott  is  as  defensible  as  the  strike,  and  they  are  equally  sub- 
jected to  unmeasured  and  persistent  condemnation  by  those  not  hav- 
ing the  workingman's  point  of  view.  To  say  that  men  of  a  large  class, 
such  as  wage  earners  of  the  country,  may  organize  into  unions,  enjoy 
the  right  to  freely  speak  and  print  their  views,  advocate  social,  indus- 
trial, and  political  changes,  advance  their  collective  and  distinctive 
as  well  as  their  individual  interests,  peaceably  assemble  without  limit 
for  any  and  all  lawful  purposes,  which  necessarily  includes  the  exer- 
cise of  rights  constitutionally  guaranteed,  and  yet  to  assert  a  power 
in  any  branch  of  government  to  prescribe  how  or  when  or  to  what 
effect  they  shall  organize,  for  what  purpose  they  shall  meet  and  com- 
mingle, what  they  shall  say  the  one  to  the  other  relevant  to  their  com- 
mon or  class  interest,  is  not  only  unjust  and  dangerous  doctrine,  but 
partakes  of  the  chimerical  and  impracticable. 

The  spirit  of  self-assertion  and  impulse  to  resent  wrong,  real  or 
fancied,  are  too  generally  prevalent  among  a  self-governing  people 
to  be  controlled  or  subdued,  even  if  all  the  courts  in  the  country 
should  devote  their  time  exclusively  to  the  attempt.  How  is  it  pos- 
sible for  courts  of  equity  to  deal  with  the  innumerable,  incessant,  and 
interminable  conflicts  and  competitions  at  work  in  every  city,  town, 
village,  and  neighborhood  3  If  those  between  industrial  classes  are 
to  have  the  espionage  and  arbitrage  of  the  courts,  why  not  those 
between  communities,  nationalities,  and  religious  denominations  ? 
These  questions  answer  themselves.  We  need  not  defend  the  morality 


PENDING   BILLS  FOR   REGULATING   INJUNCTIONS.  49 

nor  even  the  legality  of  strikes  and  boycotts,  even  if  there  were  any- 
thing in  this  bill  calling  for  such  defense.  I  go  to  the  point  of  saying 
that  where  there  is  no  possible  equity  there  is  no  possible  jurisdiction, 
and  since  the  exercise  of  the  assumed  jurisdiction  without  the  inflic- 
tion of  more  evil  than  good  is  inconceivable,  it  is  well  that  it  should 
cease. 

To  properly  understand  the  point  and  application  of  the  cases  used 
in  the  report  of  the  House  committee,  the  fact  must  not  be  overlooked 
that  after  a  labor  dispute  has  arisen  and  the  parties  are  strangers,  in 
legal  sense,  that  being  the  only  condition  under  which  the  provisions 
of  the  bill  are  applicable,  a  boycott  consists  wholly  and  exclusively 
of  words  spoken  or  written.  If  the  parties  speak  truly,  of  course 
they  are  immune  from  legal  consequences.  If  they  speak  falsely,  of 
course,  an  action  for  slander  or  libel  lies,  or  a  prosecution  may  be 
instituted  in  most  jurisdictions,  even  for  slander.  But  to  permit  a 
court  of  equity  to  make  a  special  prohibitory  law  for  the  case,  in 
advance  of  ascertainment  of  the  facts,  otherwise  than  before  a  jury 
with  the  privilege  of  cross-examination  of  witnesses,  with  penal 
consequences  for  disobedience,  is  of  course,  to  arbitrarily  set  aside 
all  bills  of  rights  and  constitutional  guaranties  of  free  speech  and 
free  press.  And  this  has  often  been  done  by  one  man  acting  without 
responsibility,  exercising  an  unlimited  discretionary  power.  In 
Dailey  v.  San  Francisco  Superior  Court  (112  Cal.,  94;  32  L.  R.  A., 
273)  the  Supreme  Court  of  California,  sitting  in  bane,  issued  writs 
of  certiorari  and  prohibition  quashing  an  injunction  which  had  been 
issued  by  the  superior  court.  Referring  to  the  provision  hi  the  Cali- 
fornia bill  of  rights,  the  court  said : 

The  wording  of  this  section  is  terse  and  rigorous,  and  its  meaning  so  plain  that 
construction  is  not  netded.  The  right  of  the  citizen  to  freely  speak,  write,  and  pub- 
lish his  sentiments  is  unlimited,  but  he  is  responsible  at  the  hands  of  the  law  for  an 
abuse  of  that  right.  He  shall  have  no  censor  over  him  to  whom  he  must  apply  for 


permission  to  speak,  write,  or  publish;  but  he  shall  be  held  accountable  to  the  law 
for  what  he  speaks,  what  he  writes,  and  what  he  publishes.  It  is  patent  that  this 
right  to  speak,  write,  and  publish  can  not  be  abused  until  it  is  exercised,  and  before 


it  is  exercised  there  can  be  no  responsibility.  The  purpose  of  this  provision  of  the 
Constitution  was  the  abolishment  of  censorship,  and  for  courts  to  act  as  censors  ia 
directly  violative  of  that  purpose. 

The  next  clause  to  be  noticed  is  that  which  taken  with  its  connec- 
tion, forbids  the  courts  to  enjoin  any  person  or  persons  "from  paying 
or  giving  or  withholding  from  any  person  engaged  in  such  dispute 
any  strike  benefits  or  other  moneys  or  things  of  value." 

This,  like  the  clauses  relating  to  the  withdrawal  of  patronage  and 
employment,  is  limited  to  the  parties  to  the  dispute. 

To  such  extremes  are  the  opponents  of  the  bill  driven  that  they 
draw  on  their  imaginations  and  suggest  all  sorts  of  impossibilities. 
For  instance,  Mr.  Monaghan  (p.  83)  says: 

In  such  an  event  a  labor  union  engaged  in  controversy  with  an  individual  manufac- 
turer is  justified  not  only  in  persuading  and  inducing  in  a  peaceful  manner  the  em- 
ployees of  other  institutions  which  have  beneficial  business  intercourse  with  the  foun- 
dry struck  to  leave  this  work,  but  in  addition  is  permitted,  without  the  possibility  of 
equity  interference,  to  offer  or  give  bribes  of  money  or  things  of  value  to  the  employees 
of  a  customer  who  continues  to  make  use  of  the  products  of  the  struck  foundry  in  order 
to  injure  dealer  or  customer  who  refuses  to  join  in  the  boycott;  men  who  are  members  of 
labor  organizations  may  approach  the  clerks  or  the  employees  of  an  establishment  that 
is  making  use  of  the  products  of  the  struck  foundry  and  offer  them  bribes  of  money  or 
things  of  value  for  the  purpose  of  inducing  them  to  quit  work  for  that  employei,  or  for 

57939°— 12 4 


50  PENDING  BELLS  FOB  BEGULATING  INJUNCTIONS. 

the  purpose  of  doing  any  other  thing  that  might  ordinarily  assist  them  in  that  strike, 
provided  no  violence  or  threat  of  violence  is  used.  The  provision  even  enters  into 
the  transportation  of  goods  by  freight  and  into  matter  of  inducement  by  bribe  on  the 
part  of  labor  organizations  to  procure  the  employees  of  interstate  carriers  to  refuse  to 
handle  the  freight  belonging  to  the  struck  institution. 

Here  we  see  how  obsessed  have  become  the  minds  of  men  engaged 
in  big  business  and  their  attorneys,  and  to  what  an  extent  they  have 
come  to  rely  on  injunctive  processes  as  weapons  with  which  to  defeat 
labor  in  its  struggles  for  better  wages  and  conditions.  They  look 
to  it  as  a  remedy  for  all  conceivable  evils.  It  is  true  that  labor  or- 
ganizations might  resort  to  bribery  to  accomplish  their  ends;  it  is 
possible  that  in  some  rare  instance  they  have  already.  But,  to 
state  it  very  conservatively,  that  is  not  the  form  or  kind  of  bribery 
and  corruption  of  which  the  public  complains,  or  upon  which  its 
attention  has  been  fixed,  either  in  former  or  more  recent  times.  And 
whoever  before  heard  an  injunction  suggested  as  affording  any  pro- 
tection against  it  ? 

There  are,  however,  more  conclusive  answers  which  will  readily 
suggest  themselves  to  all  who  are  not  blinded  by  their  viewpoints, 
as  is  Mr.  Monaghan  and  most  of  the  others  who  have  appeared  in 
opposition. 

Other  strenuous  efforts  have  been  made  in  argument  to  show  that 
even  this  harmless  liberty  of  paying  strike  benefits  might  be  per- 
verted and  abused.  I  suppose  any  man  with  an  abundance  of  cash 
could  aid  any  other  lawful  organization  to  which  he  belonged  in 
carrying  out  its  purposes,  or  receive  assistance  from  it  to  the  same 
end,  without  his  right  to  do  so  being  questioned.  But  when  the 
right  of  an  association  of  workingmen  to  do  so  is  sought  to  be  recog- 
nized, learned  counsel  are  sent  here  by  employing  corporations  to 
deny  the  right,  and  to  denounce  its  exercise  as  something  fraught 
with  danger.  The  Question  as  to  the  lawfulness  of  the  act  is  settled, 
as  I  agree  it  should  be  settled,  by  the  federal  courts  themselves.  In 
A.  S.  Barnes  &  Co.  v.  Berry  (157  Fed.  R.,  883)  it  was  held,  without 
dissent  or  qualification,  that — 

*  *  *  The  strike  benefit  fund  is  created  by  moneys  deposited  by  the  men  with 
the  general  officers  for  the  support  of  themselves  and  families  in  times  of  strike,  and 
the  court  has  no  more  control  of  it  than  it  would  have  over  deposits  made  by  them 
in  the  banks. 

I  note  that  Mr.  Hines  took  care  to  call  the  attention  of  the  com- 
mittee to  two  State  cases  (A.  R.  Barnes  &  Co.  v.  Chicago  Typo- 
graphical Union  (232  111.,  424),  and  Reynolds  v.  Davis,  198  Mass., 
294)  holding  contrary  to  my  contention,  but  neglected  to  cite  this 
Federal  case,  which  also  accords  with  latest  English  authorities, 
cited  in  the  House  committee's  report. 

The  next  clause  to  which  I  direct  attention  is  this: 

Or  from  peacefully  assembling  at  any  place  in  a  lawful  manner  and  for  lawful 
purposes. 

This  means,  of  course,  assemblages  where  they  have  the  right  of 
assembly  in  their  usual  places  of  meeting,  or  on  grounds  where  the 
right  is  public,  or  on  premises  where  they  have  permission  of  the 
owner  or  person  in  possession.  Any  other  assembling  must  be  by 
overcoming  resistance,  and  in  addition  to  being  unlawful,  could  not 
be  peaceful. 


PENDING   BILLS   FOB   REGULATING   INJUNCTIONS,  51 

It  is  strange  that  anyone  can  be  found  to  criticize  this  clause. 
And  yet  Mr.  Monaghan,  as  the  basis  or  major  premise,  for  opposi- 
tion makes  this  very  correct  but  totally  irrelevant  statement  (p.  83): 

What  "lawful  purposes"  are  is  modified  by  what  goes  before.  It  is  not  now  con- 
sidered lawful  for  a  body  of  men  to  assemble  upon  the  premises  of  a  struck  manu- 
facturing establishment,  nor  in  the  immediate  vicinity  of  a  struck  manufacturing 
establishment,  for  the  purpose  of  persuading  the  men  in  that  establishment  to  quit 
their  work. 

And  in  Mr.  Hines's  statement  to  the  committee  fears  are  expressed 
that  this  may  be  held  or  may  be  used  as  a  cloak  for  trespasses  on  rail- 
road property.  Though  there  may  possibly  have  been  instances  of 
attempts  at  such  assemblages  he  failed  to  mention  any.  But  railroads 
have  never  relied  upon  injunctions  as  a  protection  against  them  and 
never  will,  no  matter  what  may  be  the  state  of  the  law.  They  have 
found  the  police  forces  their  sole  and  safe  and  adequate  reliance. 

I  now  have  reached  the  final  clause  in  the  bill,  being  the  concluding 
clause  of  section  266c,  and  reading  thus: 

Or  from  doing  any  act  or  thing  which  might  lawfully  be  done  in  the  absence  of  such 
dispute  by  any  party  thereto. 

Though  this  has  been  discussed  at  some  length  in  another  connec- 
tion, a  brief  and  more  critical  view  of  it  may  be  here  properly  expressed. 

The  great  truth  that  the  legal  quality  of  an  act  is  never  changed  by 
the  existence  of  a  labor  dispute  seems  not  to  have  dawned  upon,  or  at 
anv  rate  not  have  impressed  the  opposition,  nor  its  twin  truth  that  to 
thinking  otherwise  is  due  many  abuses  of  the  injunctive  process.  As 
has  been  conceded  in  the  statement  of  Mr.  Davenport,  and  as  seems  to 
be  the  view  of  the  subcommittee,  the  word  "lawfully,"  as  here  used, 
"colors"  the  entire  paragraph,  and  must  of  course  apply  to  each  case 
as  it  arises.  Nor  with  that  word  used,  as  here  used,  could  the  inter- 
polated construction  apply  anywhere. 

PROVISIONS    OF    ANTITRUST   ACT    NOT    AFFECTED. 

Considering  the  environment  and  business  methods  of  those 
responsible  for  the  opposition,  their  solicitude  for  the  safety  and  preser- 
vation of  the  antitrust  act  is  surprising  and  unaccountable. 

The  bill  does  not  modify  or  touch  the  antitrust  act.  The  reason  is 
simple :  It  does  not  withdraw  the  injunctive  process  from  any  unlaw- 
ful act.  No  one  can  claim  that  it  touches  in  any  way  any  form  of 
contract  in  restraint  of  trade  or  any  other  description  of  contract, 
except,  perhaps,  contracts  for  personal  service.  And  contracts  for 
personal  service  are  not  within  the  act,  because  essentially  local. 
(Williams  v.  Fears,  171  U.  S.,  270.)  What  else  does  the  antitrust  act 
reach?  Why,  conspiracies  and  combinations  in  restraint  of  inter- 
state commerce.  Conspiracy  and  combination  within  the  moaning 
of  that  act  mean  almost  the  same  thing  and  are  affected  exactly  alike. 
For  the  purposes  of  this  bill  they  are  exactly  identical  in  that  they  are 
both  excluded  from  its  operation.  To  form  a  conspiracy  to  carry  on 
a  nation-wide  boycott,  as  in  the  Loewe  v.  Lawler  case,  could  not  be 
lawfully  done,  either  in  the  presence  or  absence  of  a  trade  dispute,  nor 
even  if  the  Sherman  Act  had  never  been  passed. 

The  antitrust  act  is  a  peaal  statute.  The  civil  remedy  is  super- 
added.  It  is  an  unusual  and  exceptional  use  of  injunctive  process. 
Congress  can  of  course  provide  any  means  and  instrumentalities, 


52  PENDING  BILLS   FOE   EEGULATING   INJUNCTIONS. 

within  the  Constitution,  which  it  sees  fit.  I  have  never  denied  to 
Congress  the  power  to  provide  that  or  any  other  remedy,  even  for  the 
prevention  of  injuries  to  personal  rights  which  are  committed  to  it  to 
protect.  For  such  purpose  it  can  confer  extraordinary,  even  unheard 
of,  jurisdiction  upon  the  courts.  But  Congress  has  never  given  the 
courts  jurisdiction  to  protect  by  injunction  any  personal  right  other 
than  that  conferred  in  the  antitrust  act.  Nor  is  that  conferred  for 
the  protection  of  any  individual  but  of  the  public  at  large. 

A  private  party  who  has  sustained  special  injury  by  a  violation  of  the  Federal 
antitrust  act  may  sue  in  a  Federal  court  for  injunction  under  the  general  equity 
jurisdiction  of  the  court,  where,  by  reason  of  diversity  of  citizenship  of  the  parties, 
the  court  has  jurisdiction  of  the  suit.  (Bigelow  v.  Hecla  Min.  Co.,  155  Fed.  R.,  869.) 

In  this  case  the  whole  question  was  reviewed  and  the  conclusions 
reached  do  not  conflict  with  decisions  denying  general  jurisdiction  to 
grant  relief  to  private  parties  by  injunction  under  the  antitrust  act. 

In  Leowe  v.  California  Federation  of  Labor  (139  Fed.  R.,  71)  was 
involved  a  boycott  by  a  local  association  of  Triest  &  Co.,  a  San  Fran- 
cisco firm.  Jurisdiction  was  exercised  solely  on  the  ground  of  diverse 
citizenship,  and  neither  the  antitrust  act  nor  interstate  commerce  was 
mentioned.  The  order  went  only  against  local  persons. 

This  bill  leaves  the  law  of  conspiracy  untouched.  Mr.  Davenport 
gives  an  illustration  of  how,  according  to  his  view,  one  of  these  lawful 
acts  mentioned  in  the  respective  clauses  of  the  last  paragraph  of  sec- 
tion 266c  might  be  illegalized.  His  illustration  is  striking  and  flaw- 
less, and  the  doctrine  of  Aikens  v.  Wisconsin  (195  U.  S.,  205)  is  unas- 
sailable. But,  as  already  fully  shown,  the  formation  of  a  conspiracy 
is  itself  an  independent  and  distinct  act,  legally  isolated  from  any  act 
mentioned  in  the  bill.  § 

SPECIAL   PLEAS   ON   BEHALF   OF   RAILROADS. 

It  seems  proper  before  closing  to  notice  some  special  pleas  inter- 
posed and  extraordinary  arguments  advanced  by  attorneys  repre- 
senting the  principal  railroads  of  the  country. 

No  one  appreciates  more  than  I  the  value  to  the  public  of  railway 
service  as  well  as  the  necessity  of  having  the  requirements  of  the 
interstate  commerce  acts  complied  with.  But  is  it  necessary  in  order 
to  secure  efficient  service  and  compliance  with  the  law  that  we  leave 
in  the  hands  of  the  judiciary  those  arbitrary  police  regulations  which 
enable  them,  every  time  a  labor  dispute  arises,  to  completely  tie  the 
hands  of  railway  employees  and  drive  them  hither  and  thither  like 
so  many  cattle?  I  think  not.  In  fact,  I  know  it  is  not.  And  even 
if  I  thought  otherwise,  I  would  rather  see  the  Government  take 
charge  with  an  armed  force  when  an  extensive  strike  occurs,  pro- 
tecting alike  the  property  of  the  railroads  and  the  liberties  of  the 
strikers  until  the  trouble  could  be  adjusted,  than  see  exercised  the 
despotic  powers  which  these  gentlemen  claim  for  the  Federal  courts. 
Their  objections  to  the  various  provisions  of  this  bill  resolve  them- 
selves into  complaints  as  to  relative  convenience  of  the  present  vogue 
in  comparison  with  the  inconveniences  to  result  if  the  abuses  and 
usurpations  of  the  judiciary  are  discontinued.  It  would  not  change 
or  modify  my  view  and  my  attitude  if  I  knew  that  every  railroad 
employee  in  the  country  was  satisfied  with  the  present  condition  in 
which,  ns  r.gainst  the  power  now  exercised  by  some  of  the  courts, 


PEXDING  BILLS   FOR   REGULATING   INJUNCTIOXS.  53 

they  are  as  utterly  helpless  to  assert  themselves  to  the  full  limits  of 
their  rights  as  if  they  were  subjects  of  an  absolute  old-time  monarch. 
I  will  not  give  my  consent  to  a  despotic  tribunal  reared  and  sustained 
merely  on  respect  for  great  wealth,  rearing  its  head,  casting  its 
shadow  over  the  land,  exercising  legislative  and  executive  powers, 
even  if  I  thought  those  whose  liberties  are  imperiled  would  consent 
to  be  so  degraded  and  enslaved. 

I  shall,  for  the  most  part,  ignore  all  those  recitals  of  the  duties  of 
carriers  as  to  rates  and  prompt  service  to  shippers.  The  Govern- 
ment has  complete  control  of  rate  matters,  and  I  feel  sure  that  it 
will  not  oppress  the  railroads  on  account  of  any  unavoidable  failure 
to  comply  with  the  law.  As  to  liabilities  incurred  by  the  carriers 
to  shippers,  the  latter  have  always  been  reasonable.  At  any  rate, 
liberty  and  the  constitutional  rights  of  men  have  been  seldom  before 
so  coolly  and  deliberately  measured  in  argument  by  a  measure  of 
dollars  and  cents. 

Mr.  Bines  calls  attention  to  the  fact  that  certain  duties  prescribed 
by  the  interstate  commerce  act  are  the  very  duties  interfered  with  by 
the  strike  of  1894,  which,  I  believe,  has  gone  into  history  bearing  the 
name  of  the  "Debs"  strike.  That  strike  occurring  18  years  ago  and 
standing  unique  and  alone,  has  been  harped  on  in  every  argument 
and  in  almost  every  phase  of  all  the  arguments  in  opposition.  Its 
incidents,  and  certain  phases  of  it  which  no  one  more  seriously  regrets 
than  do  the  railway  employees  of  the  country,  have  been  worked  into 
this  discussion  for  all  they  were  worth.  In  fact,  they  have  been 
overworked;  because  what  then  occurred  as  a,  basis  of  court  pro- 
ceedings and  military  action  finds  neither  equitable  protection  nor 
legal  sanction  in  any  part  or  provision  of  the  bill  nor  in  the  bill  as  a 
whole.  Those  acts  constituted  according  to  all  the  definitions  one 
entire  boycott  and  strike  combined.  It  was  what  all  who  make  such 
a  distinction  designate  as  the  secondary  boycott. 

Sufficient  record  may  be  found  in  158  U.  S.,  564,  to  show  that  it 
was  a  boycott  of  the  Pullman  Co.,  an  industrial  corporation,  present- 
ing all  the  phases  of  the  Leowe  v.  Lawler  case,  though  the  latter  did 
not  interfere  with  the  actual  movement  of  commerce.  It  was  peace- 
ful but  involved  violence  and  threats.  It  was  not  Attended  with 
any  regard  for  the  rights  of  others,  but  was  attended  with  trespasses 
on  private  property,  the  burning  of  cars,  disabling  of  rolling  stock, 
and  the  like. 

Notwithstanding  the  attempts  here  made  to  use  the  Debs  case  as 
a  precdent  of  value,  there  never  was  a  clearer  case  for  an  injunction 
for  the  protection  of  property  rights. 

Mr.  Hines  gives  the  committee  the  benefit  of  extracts  from  a 
Socialistic  sheet  published  in  East  St.  Louis,  and  then  recites  various 
acts  of  vandalism,  each  of  which  was  a  trespass  on  property  as  well 
as  a  disturbance  of  possession. 

Why  didn't  he  make  a  manly  and  outright  admission  that  he 
wishes  the  power  left  with  the  courts  to  enjoin  peaceful  persuasion, 
peaceful  picketing,  lawful  assemblage,  and  all  the  other  fundamental 
rights  specified  in  the  bill?  With  the  power  in  one  hand  to  collect 
not  mere  millions  but  billions  of  revenue  in  the  form  of  excessive 
freights  and  fares  he  objects  to  relinquishing  any  part  of  the  power 
held  in  the  other  hand  to  subjugate  and  enslave  1,600,000  railway 
employees  with  usurpatory,  blanket  injunctions.  Again  and  again 


54  PENDING  BILLS  FOR   REGULATING   INJUNCTIONS. 

he  reverts  to  the  public  responsibilities  of  carriers  under  the  interstate 
commerce  act,  as  if  the  labor  which  keeps  all  the  wheels  turning  were 
a  negligible  quantity  in  railroad  operation.  Does  he  wish  to  con- 
vince Congress  and  the  public  that  regulation  is  fraught  with  greater 
evils  than  benefits  ?  Is  it  his  purpose  to  prove  that  the  time  foretold 
by  Mr.  Bryan  has  already  come;  that  regulation  has  already  proven 
a  failure,  and  the  time  for  complete  Government  control  or  owner- 
ship is  at  hand?  His  arguments  point  more  directly  that  way  than 
to  any  defects  or  excesses  in  this  bill. 

I  shall  not  at  this  time  attempt  a  minute  criticism  of  Mr.  Hines' 
argument.  If  I  did  I  would  find  something  to  criticise  in  almost 
every  paragraph. 

I  will  also  revert  to  three  cases  which  have  been  referred  to  time 
and  again  and  overworked  in  argument  by  the  opposition. 

THE  DEBS    CASE. 

To  see  that  the  Debs  case  in  the  lower  court  can  not  be  properly 
used  in  the  discussion  of  any  provision  of  this  bill,  in  view  of  estab- 
lished legal  principles  already  discussed,  it  is  only  necessary  to  look 
at  the  case  itself.  The  gist  of  the  case  is  stated  in  the  eleventh 
paragraph  of  the  syllabus  (64  Fed.  Rep.,  725),  in  these  words: 

Where  defendants,  directors  and  general  officers  of  the  American  Railway  Union, 
in  combination  with  members  of  the  union,  engaged  in  a  conspiracy  to  boycott  Pull- 
man care  in  use  on  railways,  and  for  that  purpose  entered  into  a  conspiracy  to  restrain 
and  hinder  interstate  commerce  in  general,  and  in  furtherance  of  their  design  those 
actively  engaged  in  the  strike  used  threats,  violence,  and  other  unlawful  means  of 
interference  with  the  operations  of  the  roads,  and,  instead  of  respecting  an  injunction 
commanded  them  to  desist,  persisted  in  their  purposes,  without  essential  change  of 
conduct,  they  were  guilty  of  contempt. 

In  the  principal  case  out  of  which  this  contempt  proceeding  grew 
the  defendants  were  charged,  as  is  shown  in  this  case,  with  taking 
possession  of,  firing  upon  and  setting  fire  to  cars.  (See  64  Fed. 
R.,  728.) 

As  further  showing  the  basis  of  the  jurisdiction  exercised  in  that 
case  I  refer  to  a  synopsis  of  the  points  and  authorities  presented  by 
counsel  and  relied  upon,  the  same  being  one  ground  of  the  decision, 
of  the  court.  The  synopsis  is  in  part  as  follows : 

1.  Any  interference  with  property  in  the  custody  of  the  court  is  a  contempt  (citing 
authorities). 

2.  Such  also  is  any  act  of  interference  by  force  or  threats  with  employees  in  charge 
of  such  property  (citing  authorities). 

3.  Aiding,  advising,  or  persuading  another  to  do  a  forbidden  act,  or  even  permitting 
another  whose  action  can  be  controlled  to  do  the  forbidden  act,  is  contempt  (citing 
authorities). 

But  another  ground  of  the  jurisdiction  was  that  the  conduct  of  all 
the  defendants  in  combination  constituted  a  public  nuisance.  I  will 
not  attempt  an  elaboration  of  the  exceptional  jurisdiction  based 
upon  the  suppression  of  purprestures  and  missances. 

It  is  fully  expounded  both  by  Judge  Woods  in  this  case  and  by 
Justice  Brewer  in  the  Supreme  Court  (158  U.  S.,  586-589). 

THE    BITTERMAN    CASE. 

In  Bitterman  v.  Louisville  &  Nashville  Railroad  Co.  (207  U.  S., 
205)  the  lower  court  had  enjoined  ticket  brokers  from  dealing  in 
nontransferrable  railroad  tickets  on  the  ground  that  they  were  thereby 


PENDING  BILLS  FOE  BEGULATING  INJUNCTIONS.  55 

inducing  the  holders  of  such  contracts  (tickets)  to  violate  their  con- 
tracts. Of  course  the  rights  secured  by  enforceable  contracts,  such 
as  these  were,  are  property  rights,  and  it  did  not  require  this  decision 
to  so  establish  so  well  known  a  principle.  And  the  basis  of  the 
jurisdiction  dwelt  upon  by  the  Supreme  Court  was  the  property 
interest  which  the  railroad  company  retained  in  the  tickets  by  virtue 
of  the  forfeiture  clause,  expressly  held  by  the  court  to  constitute  a 
property  interest. 

THE   ADAIR   CASE. 

Since  the  expression  of  Justice  Harlan  in  the  course  of  a  rhetorical 
opinion  to  the  effect  that  the  right  of  a  corporation  to  make  contracts 
is  a  property  as  well  as  a  personal  right  is  of  no  authoritative  value 
in  a  discussion  of  this  bill,  I  shall  not  devote  the  time  and  labor  which 
would  be  necessary  for  the  purpose  to  criticize  it.  Nor  shall  I  pay 
more  than  a  mere  passing  notice  to  another  expression  in  his  tre- 
mendously brilliant  discourse.  He  also  said: 

The  right  of  a  person  to  sell  his  labor  upon  such  terms  as  he  deems  proper  is,  in  its 
essence,  the  same  as  the  right  of  the  purchaser  of  labor  to  prescribe  the  conditions 
upon  which  he  will  accept  such  labor  from  the  person  offering  to  sell  it.  (P.  174.) 

Now,  the  learned  justice's  conception  of  labor  is  that  of  a  com- 
modity in  the  market.  And  if  it  can  be  kept  on  tap,  or  canned  up, 
until  a  purchaser  appears,  it  is  indeed  difficult  to  see  why  a  breach 
of  contract  to  deliver  it  can  not  be  enjoined.  But  he  proceeds 
immediately  to  say: 

So  the  right  of  the  employee  to  quit  the  service  of  the  employer,  for  whatever  reason, 
corresponds  with  the  right  of  the  employer  to  dispense  with  the  services  of  such 
employee. 

And  in  support  of  this  very  correct  statement  he  cites  numerous 
authorities,  among  which  is  Arthur  v.  Oakes,  decided  by  himself. 

Now,  I  will  show  the  irrelevancy  and  worthlessness  of  all  these  cases 
by  the  words  of  Mr.  Davenport,  who  made  most  frequent  and  per- 
sistent use  of  them: 

Under  the  decision  of  the  United  States  in  this  Adair  case,  and  supported  by  a  very 
large  number  of  decisions  everywhere,  those  things  that  in  the  Pearre  bill  were  sought 
to  be  declared  not  to  be  property  and  property  rights  and  would  be  covered  by  the 
first  clause  of  this  bill.  But  the  bill  goes  on,  then,  to  say  that  a  certain  class  of  acts 
attacking  your  property  right  shall  not  be  enjoined  against,  and  this  is  the  way  it 
reads. 

Senator  SUTHERLAND.  May  I  interrupt  you  again?  I  had  understood — I  do  not 
know  where  I  saw  it  or  where  I  heard  it — that  it  had  been  claimed  that  the  provision 
in  this  bill  now  pending,  with  reference  to  property  rights,  would  not  include  the 
right  to  do  business.  I  wondered  what  the  foundation  of  that  was. 

Mr.  DAVENPORT.  In  construing  this  bill  I  suppose  the  courts  would  say  that  what 
the  courts  have  said  time  out  of  mind  are  property  rights  would  be  covered  by  that 
first  section  and  that  when  it  says  that  "unless  to  prevent  irreparable  injury  to  prop- 
erty or  to  a  property,"  whatever  fell  within  that  definition  of  property  would  be 
covered  by  the  terms.  (P.  22,  pt.  3.  Senate  hearings.) 

As  I  stated  the  other  day,  if  this  bill  were  passed,  the  law  would  still  be  unchanged 
as  to  what  is  lawful  and  what  is  unlawful.  Its  sole  effect  and,  as  I  understand  it,  the 
sole  purpose  of  those  gentlemen  who  took  the  responsibility  of  recommending  it  to 
the  House  of  Representatives  is  simply  that  it  takes  away  the  injunction  process; 
it  is  an  anti-injunction  bill ;  it  merely  deprives  the  injured  party  of  his  relief  in  equity. 

The  committee  will  see  that  the  purpose  of  this  law.  if  it  were  enacted,  and  it  had 
the  construction  which  its  advocates  contend  for,  its  effect  would  not  change  the  law 
as  to  what  property  is  nor  to  make  lawful  those  things  which  are  now  unlawful,  but 
simply  to  take  away  from  the  persons  whose  property  rights  are  affected  by  the  unlaw- 
ful acts  the  right  to  go  into  court  of  equity  and  seek  the  protection  of  an  injunction. 


56  PENDING   BILLS   FOE   REGULATING  INJUNCTIONS. 

Indeed,  if  you  will  look  at  this  bill  closely  I  think  the  courts  in  their  struggle  to  main- 
tain the  law  would  be  very  apt  to  say  it  does  not  even  do  that,  because  if  you  will  look 
at  this  last  section  266c,  apparently  the  last  clause  colors  all  that  has  gone  before,  "or 
from  doing  any  act  or  thing  which  might  lawfully  be  done  in  the  absence  of  such 
dispute  by  any  party  thereto."  (Senate  hearings,  p.  256,  pt.  4.) 

You  can  not  enjoin  them  from  doing  lawful  acts.  A  court  of  equity  will  turn  you 
out  in  a  minute  unless  you  bring  your  case  within  jurisdiction  of  the  court.  You  have 
to  show  that  unlawful  acts  are  being  done,  you  have  to  show  why  they  are  unlawful, 
you  have  to  show  the  injury  is  irreparable,  and  you  have  to  show  you  have  not  that 
adequate  remedy  at  law  which  is  essential.  The  law  now  is  that  these  things  are 
lawful;  they  can  not  be  enjoined  by  a  court  of  equity;  they  will  not  be  and  they 
never  are.  (Senate  hearings,  p.  271,  pt.  4.) 

The  substance  of  all  this  is  that  Mr.  Davenport,  leading  counsel  in 
opposition,  says: 

1.  I  am  dwelling  on  the  Adair  case  (and  he  might  have  included  the  Debs  and 
Bitterman  cases),  notwithstanding  that  it  is  entirely  irrelevant. 

2.  The  bill  will  not  admit  of  a  construction  which  forbids  an  injunction  to  prevent 
any  unlawful  act,  since  the  last  clause  colors  and  controls  all  the  preceding. 

3.  The  bill  does  not  forbid  equity  to  enjoin  illegal  acts,  and  equity  will  not  enjoin 
lawful  acts. 

NO    CONSTITUTIONAL  OBSTACLE    IN   THE   WAY. 

I  shall  not  devote  much  tune  on  the  question  of  constitutionality, 
though  hours  of  the  subcommittee's  time  has  been  given  up  for  what 
I  consider  to  be  absurd  attempts  to  show  Congress  to  be  destitute  of 
power  to  enact  this  or  any  similar  bill.  I  shall  not  interpose  what 
might  be  called  a  constitutional  argument,  properly  so  called,  since 
that  appears  to  be  entirely  unnecessary,  but  in  order  to  remove  a 
possible  doubt  in  any  mind,  I  will  condense  a  few  propositions  and 
citations. 

The  contentions  of  counsel  when  reduced  to  simplest  terms  mean 
just  this:  That  when  Congress  had  acted  under  its  constitutional 
power  and  had  established  a  Federal  court,  common  law  and  equity 
powers  of  courts  immediately  flowed  out  of  the  Constitution  into 
these  judicial  receptacles.  It  is  only  necessary  to  briefly  examine 
this  new  doctrine  to  see  the  absurdities  to  which  it  would  lead. 

Here  is  an  important  fact,  persistently  overlooked  in  discussions 
of  counsel.  The  common-law  courts  of  England,  from  King's  Bench 
down,  in  addition  to  administering  statutory  law  and  the  common 
law  proper,  exercised  certain  parliamentary  powers — so  called  to 
distinguish  them  from  the  legislative  powers  of  Parliament,  but 
which  were  in  substance  and  effect  powers  of  legislation.  That  is  to 
say,  they  assumed  the  prerogative  of  determining  what  public  interest 
and  policy  required,  if  the  question  had  not  been  irrevocably  settled 
by  precedents.  In  our  schemes  of  government,  National  and  State, 
as  has  been  many  tunes  decided,  courts  have  nothing  to  do  with  the 
policy  of  laws.  It  is  their  function  to  ascertain  and  declare  what 
the  law  is,  leaving  questions  of  policy  to  the  legislature.  In  the 
English  system  the  legislative  and  judicial  departments  were,  and 
are,  entirely  independent  of  each  other.  It  is  true  that  the  courts 
are  bound  by  acts  of  Parliament,  as  construed  by  them,  but  outside 
the  statutes  their  powers  were  as  free  from  limitations  as  those  of 
Parliament  itself,  they  being  there  the  exponents  and  final  arbiters 
of  public  policy  for  the  Kingdom.  Many  common-law  rules  and  prin- 
ciples were  established  in  the  exercise  of  these  ultrajudicial  powers. 
The  framers  of  the  Constitution  were  familiar  with  aft  this,  and  their 


PENDING  BILLS   FOB   EEGULATING  INJUNCTIONS.  57 

knowledge  of  it  was  no  doubt  a  predominating  reason  for  rejecting 
the  common  law  as  a  part  of  our  system.  The  result  is  that  our 
Federal  courts  possess  the  equitable  jurisdiction  of  English  chan- 
cery courts,  but  do  not  possess  their  extra-judicial,  or  legislative, 
powers. 

When  we  speak  of  the  powers  of  our  courts  we  mean  their  juris- 
diction, including  what  may  be  termed  their  implied  jurisdiction, 
meaning  those  powers  which  are  necessarily  incidental  to  the  effec- 
tive exercise  of  the  jurisdiction.  And  when  Congress  sees  fit  to  limit 
or  subtract  from  the  jurisdiction  the  incident,  to  wit,  the  power,  falls 
with  the  principal  thing.  It  is  true  that  in  the  part  of  the  Constitu- 
tion providing  for  the  judiciary,  jurisdiction  is  confined  as  there 
specified  without  limitation  or  reservation.  It  does  not  follow, 
however,  that  the  jurisdiction  is  not  without  limitation  in  the  Con- 
stitution. It  is  necessarily  subject  to  such  limitations  and  excep- 
tions as  may  be  imposed  by  Congress,  which  by  the  same  instrument 
is  given  power  to  establish  the  courts,  and  by  necessary  implication 
to  define  and  limit,  as  well  as  from  tune  to  time  to  subtract  from  the 
jurisdiction. 

But  it  is  said  that  to  concede  this  would  be  conceding  to  Congress 
the  power  to  destroy  the  courts.  This  is  undoubtedly  true,  but 
what  of  it  ?  There  never  has  been  a  time  from  the  assembling  of  the 
First  Congress  to  the  present  when  Congress  had  not  the  power  to 
destroy,  not  only  the  courts,  but  the  executive  department,  and 
even  itself.  This  is  well  known,  and  the  methods  by  which  it  might 
do  this  are  obvious;  but  a  supposition  that  the  Congress  would  ever 
do  any  such  thing  is  so  ridiculous  that  the  topic  need  not  be  pursued 
hi  detail. 

The  authorities  in  support  of  the  foregoing  propositions  are  ample. 

In  Gary  v.  Curtis  (3  How.,  236,  254)  the  Supreme  Court  said: 

The  courts  of  the  United  States  are  all  limited  in  their  nature  and  constitutions, 
and  have  not  the  powers  inherent  in  courts  existing  by  prescription,  or  by  the  com- 
mon law. 

In  section  720  of  the  Revised  Statutes  of  the  United  States  we  have 
a  statute  prohibiting  the  courts  from  issuing  injunctions  in  certain 
cases,  and  the  constitutional  validity  of  that  statute  was  upheld  in 
Sharon  v.  Terry  (36  Fed.  R.,  365) .  And  an  examination  of  the  judici- 
ary act  of  1789  will  discover  therein  many  limitations  upon  juris- 
diction, not  to  mention  subsequent  statutes.  The  cases  of  Ex  parte 
Robinson  (19  Wall.,  505)  and  Finck  v.  O'Neal  (106  U.  S.,  272)  may 
also  be  cited  as  authority  to  the  same  effect.  In  the  latter  case,  it 
appeared  that  Congress  had  taken  from  the  court  all  power  to 
enforce  its  judgments,  and  the  act  of  Congress  was  upheld  by  the 
Supreme  Court.  In  the  opinion  we  find  these  highly  significant 
words : 

The  United  States  can  not  enforce  the  collection  of  a  debt  from  an  unwilling  debtor 
except  by  judicial  process.  They  must  bring  a  suit  and  obtain  a  judgment.  To 
reap  the  fruit  of  that  judgment  they  must  cause  an  execution  to  issue.  The  courts 
have  no  inherent  authority  to  take  any  one  of  these  steps,  except  as  it  may  have  been 
conferred  by  the  legislative  department;  for  they  can  exercise  no  jurisdiction,  except 
as  the  laws  confer  and  limit  it. 

A  number  of  State  cases  have  been  desperately  resorted  to  by 
opposing  counsel  to  supply  the  lack  of  Federal  authority.  But  the 
constitutions  of  the  various  States  themselves  provide  for  and  estab- 


58  PENDING  BILLS  FOR  REGULATING  INJUNCTIONS. 

lish  the  courts,  partition  the  powers  of  government  in  detail,  pre- 
scribing safeguards  and  limitations;  whereas,  in  the  federal  system 
full  and  complete  control  of  the  matter  has  been  delegated  to  Congress. 
Nor  should  the  fact  be  overlooked  that  State  decisions  on  the  subject 
are  often  based  upon  precedents  of  the  common  law,  which,  as  is 
well  known,  is  no  part  of  the  Federal  system.  A  striking  illustration 
of  this  divergence  of  btate  from  national  view  is  seen  in  Ex  parte 
McCowan  (139  N.  Car.,  95),  where  it  was  said: 

We  are  satisfied  that  at  common  law  the  acts  and  conduct  of  the  petitioner,  as  set 
out  in  the  case,  constitute  a  contempt  of  court,  and  if  the  statute  does  not  embrace  this 
case  and  in  terms  repeal  the  common  law  applicable  to  it,  we  would  not  hesitate  to 
declare  the  statute  in  that  respect  unconstitutional  and  void. 

CONCLUSION. 

I  have  not,  in  what  I  have  said,  sought  to  arouse  any  feeling  of 
passion  for  or  against  any  class  or  interest.  The  issue  is  broader 
than  any  class  interest.  Our  institutions  can  not  endure  if  any 
large  class  be  deprived  for  any  considerable  length  of  time  of  equal 
rights  and  equal  treatment  in  the  courts;  and  since  Congress  nas 
long  neglected  relief  against  the  unjust  discriminations  herein,  I 
insist  that  it  should  interpose  its  power  without  further  delay. 


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